IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM
( CORAM: MWARI3A. J.A., KENTE. J.A. And MURUKE. J.A.^t
CIVIL APPEAL NO. 530 OF 2022
ALLEN RUTATEKURURWA RUGAZIA......... .................................. APPELLANT
VERSUS
PARFECTUS RUTEGANYA.................. ....................................RESPONDENT
(Appeal from the Judgment and Decree of the High Court of Tanzania,
Temeke High Court Sub-Registry, One Stop Centre)
fMuaeta, J.t
dated the 13th day of September, 2022
in
Probate & Administration Cause No. 16 of 2021

JUDGMENT OF THE COURT

15th August, 2023 & 8th July, 2024

MURUKE 3. A.:
On the 13th day of September 2022, the High Court of Tanzania,

Temeke registry (Mugeta, J.) delivered a judgement in a succession dispute

relating to the Estate of the late Hon. Projest Aloys Rugazia (deceased), who

had died on the 4th august 2019, following illness. He left surviving him his

wife Judith Kokumanya Rugazzia, and his two sons Aloys Rwehabura Rugazia

(Stephen) and Allen Rutatekurura Rugazia.

The deceased was said to have died testate and the dispute concerned

the validity of the will and distribution of the Estate. The respondent who
was named the executor filed probate and administration cause No 16/2021

with the will annexed seeking to have the will of the deceased confirmed.

Following the institution of the petition for probate and the issuance of

the general citation in the government gazette, Allen, the appellant, being

one of the deceased's sons filed a caveat challenging the validity of the will.

After citation to caveat and filling of all necessary documentation, the trial

court then proceeded with the hearing in which the respondent called six

witnesses to prove the validity of the will, whereas, the appellant had two

witnesses including himself. At the conclusion of the hearing, the caveat/

objection was dismissed and the will was declared to be valid, accordingly

the respondent was appointed the executor of the deceased's will.

Dissatisfied with the High Court judgment, the appellant filed the

present appeal raising four grounds of appeal, namely:

1. The High Court erred in law when it failed to comply with the

requirement of section 52 (b) and 59 (1) and (3) of the Probate and

Administration of Estate Act (cap 352 RE 2019) and rule 82 (6) of

the Probate Rules, 1963 (GN No 369 of 1963).

 2. The High Court erred in law and fact when it failed to hold that the

appellant was constructively disinherited and thus invalidate the

will.

3. The High Court erred in law when it failed to properly evaluate and

analyze the evidence on record.

4. The High Court erred in law and fact when it failed to consider

evidence in form of affidavit which contains evidence that the will is

invalid.

Both parties filed their written submissions for and against the appeal in

terms of rule 106 (1) and (7) of the Tanzania Court of Appeal Rules 2009.

On the date set for hearing of the appeal, Mr. Daimu Halfani assisted

by Mr. Odhiambo Kobas, both learned counsels jointly represented the

appellant, whereas Mr. Eustace Rwebangira also learned counsel

represented the respondent.

Apart from adopting submissions in support of the appeal filed earlier,

Mr. Daimu submitted on ground one that after the respondent had lodged

petition for probate on 13th October 2021 under section 55 of the Probate

and Administration of Estate Act Cap 352 RE. 2019, (the Act) and an order
for publication for general citation, the appellant became aware, thus filed a

caveat on 8th November 2021, opposing the grant of probate to the

respondent. It was followed by appellant entering appearance by filing form

no 65 (appearance by caveator) and accompanying affidavit. After such

appearance by caveator, then the procedures prescribed by Rule 82 (b) of

Probate Rules, 1963 (GN 10 of 1963) as amended (the Rules) needed to be

complied with. The said rule provides as follows:

"W hen a ca v e a to r e n te rs an appearance, th e

p ro ce e d in g s s h a ll be num bered a s a s u it a n d
th e R e g istra r s h a ll a p p o in t a d ate upon w h ich
th e s u it s h a ll be lis te d b efo re a ju d g e in C o u rt
fo r su ch o rd e rs a s to p le a d in g s an d d ate o f th e
h e a rin g a s th e ju d g e m ay m ake."

The above procedures under rule 82 (supra) is an implementation of

section 52 (b) and 59 (1) and (3) of the Act. The appellant's counsel insisted

that from the above provisions, when a caveat is entered, the proceedings

become contentious and where a caveator enters an appearance the

proceedings take, as nearly as possible the form of a suit, in which the

petitioner for the grant of probate becomes a plaintiff and any person who
appears to oppose the proceedings becomes the defendant. Then, the

hearing proceeds as a civil suit. Insisting further, the appellant's counsel

argued that, in the present case after the caveat was entered, and

appearance by caveator, proceedings were not (i) presented to the Registrar

(ii) not numbered as suit i.e. civil case, (iii) the trial judge did not make

orders in relation to pleadings (iv) worse enough, the trial judge dealt with

the proceedings for petition for probate in probate and administration cause

no 16 of 2021, received evidence and delivered judgment in disregard of the

mandatory provisions of the law. To support his argument Mr. Daimu

reffered the Court to the case of Monica Nyamakare Jigamba v. Mugeta

Bwire Bhakome as an administrator of the estate of Musiba Reni

Jigabha and Another (Civil application No. 199 of 2019) [2020] TZCA 1820

(16 October 2020) where the Court held at page 1A of the judgement, that:

"w here a p e titio n h as been opposed, th e

p ro b a te o r a d m in istra tio n p ro ce e d in g s change
a s n e a rly a s can be, in to an o rd in a ry c iv il s u it,
w here th e p e titio n e r becom es th e p la in tiff a n d
ca v e a to r becom es th e d e fe n d a n t a n d p a rtie s
a re re q u ire d to file s p e c ia lp le a d in g s. The m ain
p u rp o se o f th a t p ro ced u re is to fa c ilita te th e
 in v e stig a tio n o f ca v e a to r's o b je ctio n a n d its
e ffe c t is to en ab le th e e n tire p ro cee d in g s, b u t
n o t ju s t a p a rt o fitf to be d e a it w ith in to ta lity
a s in a s u it an d to be co n clu d e d a s one w hole."

Mr. Dai mu argued further that, in the present case, there are no

pleadings/ or special pleadings, more so as the proceedings were not turned

into a civil case. It was improper for the parties to adduce evidence as

caveator and petitioner respectively where there were affidavits on record

which in law, were evidence. He referred the Court to the case of Revenath

Eliawory Meena v. Albert EMaworry and Another, Civil Revision No. 1

of 2019 where the Court at page 13 held that:

"Our observation o f the proceedings has convinced

us that, on the fillin g stage o f the petition to the
general citation , basicaiiy there was com pliance with
the procedure requirements. We note that, the
procedural for dealing with probate and
adm inistration causes in a situation where a caveat
has been entered, are governed by the provisions o f
section 58 and 59 o f the Probate and Adm inistration
o f Estate A ct Cap 352 RE. 2002 and Rule 82 o f the
probate rules."
Mr. Daimu concluded on ground one by insisting that the irregularity is fatal,

because the appellant's caveat/objections were not properly investigated

rendering the proceedings a nullity for want of jurisdiction.

In response to the submission in ground one, Mr. Rwebangira

submitted that the appellant's counsel has not, authoritatively, shown which

mandatory requirements of law were not followed. The cited provision of

Sections 52, 57-82 of Act and Rule 82 (6) of the Rules were fully complied

with. Equally so, the appellant counsel does not mention or demonstrate

what could have been special pleadings and procedures to be followed, the

documents filed after appearance; including affidavit and counter affidavit

were special pleadings argued respondent counsel. The cited provisions and

the case of Monika Nyamakare Jigamba (supra) which is attached to the

appellant's submission, are relevant. The laid down procedures were

followed. The case of MONICA supports in full the judgment of the trial

court subject to this appeal. In that decision, the Court emphasized the

compliance with the provisions of Sections 58, 59 (3) and 52 (b) of the Act

at page 13 of decision, argued Mr. Rwebangira.

7
 More so, the case of Revenath Eliawory Meena (supra) attached to

the appellant's submissions, the stages after entering a caveat under Rule

82 of the Rules were not complied with in that case. The Court held at page

17 as follows:

"... A fter the caveat had been entered by the

applicant on the 12th November, 2015, the
subsequent stage as elucidated under rule 82 above
were never follow ed."

This is different from the case at hand as rule 82 was fully complied

with. The application for citation was filed, the citation was issued, Caveator

entered appearance and the matter took the form of a suit. As such that

case is distinguishable, not relevant to the case at hand. Having so

submitted, Mr. Rwebangira then prayed for dismissal of ground one for lack

of merits.

Having heard both counsel in their clarifying submissions on ground

one, the issue before us is whether after filing of a caveat by the appellant

under section 58 (1) of the Act the procedures were complied with. Our

starting point is the record of appeal before us that laid down the sequence

of events from when the petition was filed as follows:

 1. The petition for grant o f probate was duiiy filed as seen a t page 10
o f the record;

2. General publication was made in the Government Gazette at page

24 o f the record;

3. Caveat was entered by the appellant a t page 51 o f the record;

4. Application fo r Citation to Caveator was file d as seen a t page 54;

5. Citation to Caveator was issued by the Deputy Registrar a t page 56

o f the record;

6. Caveator (appellant) entered appearance as seen a t page 57 o f the

record;

7. A ffidavit with annexures accompanying appearance by Caveator

stating why he object the petition was file d as seen at page 60 o f
the record; and

8. Respondent's Counter A ffidavit with annexures was filed as seen at

page 83 o f the record.

As such the documents filed after caveat were the special pleadings.

Upon receipt of respondent's (petitioner's) counter affidavit, the appellant

did not file any affidavit in reply or rejoinder affidavit. Up to that stage, the

pleadings were complete.

9
 From the above listed series of events all steps were taken in

compliance with the cited provisions of the law, in particular Section 52(b)

of the Act in which the proceedings was taken as nearly as the form of a suit

as reflected at page 103 of the record reproduced below:

"D ate: 1 3 /1 2 /2 0 2 1
Coram : Hon. I. C. M ugeta, J.
F o r th e p e titio n e r: A b se n t R ep rese n te d b y G eorge
N gem eia, A d vo cate
F o r C aveator: P re se n t R ep rese n te d b y O dhiam bo
K obas, ad vocate

C o u rt C ie rk : K a tw iia
N oem efa: M y Lord' the case is for hearing. We have received an
affidavit o f the Caveator. We have also filed a counter
affidavit to it. I pray for another hearing date as the
petitioner is absent

K obas:- M y Lord, we have filed a il the necessary documents. The

proceedings are co n te n tio u s. We a re re a d y to p ro ce e d .

The proceedings being contentious, the Court proceeded to frame

issues. The respondent (petitioner) and his witnesses started to adduce

evidence, as such the requirement of section 52 (b) of the Act was fully

complied with.
10
 Failure of the trial court to write that the proceedings had changed into

a civil suit, and failure to change the status of petitioner and caveator in the

title of the case, to be respectively the plaintiff and defendant, while in

essence proceedings reveal that they were conducted as a normal civil suit,

the appellant cannot be heard complaining that he was not given the right

to be heard because:

One, he filed affidavit which is evidence to challenge the petition

including the validity of the will.

Two, appellant gave his evidence in support of his objection as DW1

and assisted by his aunt, the deceased's sister who testified as DW2.

Three, issues for determination were framed by the court basing on

pleadings.

Four, the appellant through his advocate was given the right to cross

examine all six witnesses for the petitioner who proved the existence

of the will.

As correctly submitted by Mr. Rwebangira, the mode adopted by the

High Court in disposing the matter was agreed upon by all parties and no

one was prejudiced as the parties were heard on the framed issues. If there
11
was any irregularity then it was not fatal. In totality, ground one is without

merits, thus dismissed.

On ground two, Mr. Daimu counsel for the appellant submitted that,

the appellant disputed and is still disputing the validity of exhibit PI, the will

of his late father. Clause B of the will contains properties of the deceased

and clause C deals with distribution of the properties listed in clause B. There

are two groups of properties i.e. those situated in Dar es salaam and those

in Kagera region. The evidence reveals that, the properties which the

deceased could have bequeathed to any person and such other person can

transfer them without conditions are based in Dar es salaam. On the other

hand, the properties in Kagera were mostly clan/ family properties and their

succession goes to those who hold them for the clan. They cannot be sold

without the consent of the clan or certain members of the clan, forests

being one of such properties. The appellant's counsel insisted that the

appellant was disinherited because:

One, Clause C (i) is the clan land and the proviso shows that the land

did not belong to the deceased as his personal property like the one in

Dar es salaam, therefore not subject to inheritance.

12
 Two, according to Clause C (ii) of the will, the farm and the house at

Mugana was given to the deceased's wife and will pass over to the

appellant after death of the deceased's wife.

Three, none compliance of the promise given by the deceased to the

appellant. During his lifetime (deceased) who was the appellant's

father promised to give him a plot at Mbweni, Kinondoni, Dar es

salaam. However, in the will, the plot was given to the wife without

there being a reason of the deceased not keeping his promise.

Four, he has been given clan land, forests, farms whose existence and

identities have not been established. More so, the will did not state

and identify neighbors adjoining the forests and farms.

Responding to the second ground, the respondent counsel submitted

that, the will of the deceased has to be respected. The appellant is warm

and cold at the same time. Initially at the trial court, he was saying there

was no will, no valid will, the will is invalid because he has been disinherited,

the will is forged, the will was written while the deceased was critically ill and

that the will was written under influence. Now, which is which? In his

submission, the appellant's counsel has stated that the appellant, through

13
the will has been given the properties which did not belong to the deceased

or clan properties including land and cattle.

Mr. Rwebangira further submitted that, according to the will admitted

as exhibit PI, the deceased's properties are recorded thereto and are not

objected to by any person. Surprisingly, the appellant, who is also a

beneficiary, is the one who is alleging that those properties are not part of

the estate of his late father. There is no clan member or family member who

had come out to object the inclusion of those properties as part of the estate

of the deceased. In the case of Monica Nyamakare Jigamba (supra) cited

by the counsel for the appellant, it was held that:

"since the 2nd respondent m issed the first boat and

there is already in place an adm inistrator o f the
deceased assets, it was expected o f her to approach
the appointed adm inistrator, the 1st respondent, and
raise her concern to him. This is the position we
stated so in the case o f M G E N IS E IF v. M O HAM ED
YAHA YA KH ALFAN I, C ivilApplication No. 1 o f2009
(unreported) that:

"where a person claim ing any interest in the Estate

o f the deceased m ust trace the root o f title back to a

14
 letters o f adm inistration , where the deceased died
intestate or probate, w/;e/7 the deceased passed
away testate."

Mr. Rwebangira insisted that in the case at hand, if the said properties

did not fall within the estate of the deceased subject to administration, then,

the person with interest could have filed a caveat or lodged a claim to the

executor. Since the deceased died testate, then the appellant is the one who

thought of disinheriting himself and not the will.

In the proceedings the appellant admitted not to be conversant with

Haya customs and he did not know the location of the properties. At page

178 of the record of appeal, the appellant is recorded to have said:

"Despite this I have been disinherited. According to

paragraph C (ii) o f the wifi, the property iisted has
been given to the deceased's wife with life interest
thereafter it becomes mine. However, there are
conditions which I don t iike. According to paragraph
C(ii) I have been given a farm with trees at
Kyankurukumba to share with Aioys Rweyabura.
There is aiso my share a t C (x) and D (ix). Yes,
assuming exhibit P I is valid, I have a share in the

15
 deceased's Estate. I do not know where the tree
farm s are located."

Mr. Rwebangira further submitted that, it was surprising to not that,

the person to whom the Estate has been bequeathed by the will of the

deceased disowns those properties without even objections from the third

party and without knowing its location. Also, he admits that if the will is valid,

then he had a share. Therefore, the court having concluded that the will is

valid, the appellant cannot be heard arguing that he was disinherited by the

will, but he is not satisfied with what he has been given as per the will.

The respondent's counsel argued further that, it has been submitted

that the appellant disputed the existence of the forests and that no witness

came out to prove its existence. But here the question is who had a burden

of proof? The said farms, houses, cattle and tree plantations (forest) were

listed in the will as deceased's properties. Anyone who was disputing that

those properties do not fall within the Estate of the deceased had a burden

of proof. Whoever alleges must prove, this was held so in the case of Mrs.

Zubeda Ahmed Lakha v. Hakibhai Kara Ibrahim & Others, Civil Appeal

No. 238 of 2018, (unreported), at pages 15 and 16 as follows:

 ".. the burned o fproving a fact rest on the party who
substantially asserts the affirm ative o f the issue and
not upon the party who denies it; for negative is
usually incapable o f proof. ...the Court has to
examine as to whether the person upon whom the
burden lies has been able to discharge his burden.
U ntil he arrives at such conclusion, he cannot
proceed on the weakness o f the other p a rty..."[a t
page 1896].

Likewise, in the present case the appellant who alleged that the

properties which were given to him in the will were none-existent or were

family/clan properties, had the burden of proof by evidence, a burden which

was not discharged. Then Mr. Rwebangira pressed for dismissal of the

second ground for lack of merits.

Before resolving ground two, we will first endeavor to put the matter

in proper perspective by defining what probate is. According to Blacks Law

Dictionary, ninth edition, probate is defined thus:

"P ro b a te being the ju d icia l procedure by which a

testam entary document is established to be a valid
w ill the proving o f a w ill to the satisfaction o f the
court. Unless set aside, the probate o f a w ill is
17
 conclusive upon the parties to the proceedings (and
others who had notice o f them) on a il questions o f
testam entary capacity, the absence o f fraud or
undue influence, and due execution o f the will. But
probate does not preclude inquiry into the validity o f
the w ill's provisions or their proper construction or
legal effect Also term ed p roof o f w ill."

In a petition for probate, the court is concerned with the validity of

the will as annexed to the petition. The questions which normally come up

are whether or not the will has been properly executed; whether or not the

testator had the capacity to make the will; in the case where the testator

has disabilities like blindness, deafness or illiteracy, whether or not the

contents of the will were made knowledgeable to him by reading over, etc

and he had granted his approval; whether there was undue influence or

not; whether there was forgery and fraud or not; and whether the will has

been revoked or not. If the will passes all the tests enumerated above, it is

taken to be proved, and the court will grant the executor the power to

administer the will. These requirements of the law are reflected in sections

24 to 28 of the Act and also in the definition of "probate" in the Act which

goes thus:
18
 " p ro b a te " m eans th e co p y o f a w ill, o r, in th e
ca se o f an o ra / w ill, a sta te m e n t o f th e
co n te n ts th e re o f, c e rtifie d u n d er th e s e a l o f
th e c o u rt w ith a g ra n t o f a d m in istra tio n o f th e
e sta te o f th e te sta to r. "

In probate, therefore, it is the wish of the deceased testator that is given

effect as shown in the will.

The appellant challenged the distribution in the will contending that it

was not equitable, and that no findings were made in regards to the will,

which allocated the lion's share of the vast estate to other beneficiaries

leaving him with only clan properties. He maintained that, the deceased

would not have favored some of the beneficiaries and adopted the

inequitable mode of distribution in the will. He however blamed the court for

failing to make any finding on the will which sought to give him a less share.

To the best of our understanding, a will is a legal declaration of the

intention of a person with respect to his property, which he desires to take

effect after his death. It is a unilateral document that takes effect after the

death of the person making it. Normally no written will shall be valid unless:
 "O ne, the testator has signed or affixed his mark to the w ill, or it has

been signed by some other person in the presence and by the direction

o f the testator.

Twof the signature or m ark o f the testator, or the signature o f the

person signing for him, is so placed that it shall appear that it was

intended thereby to give effect to the w riting as a w ill:

Three, the w ill is attested by two or more com petent witnesses, each

o f whom m ust have seen the testator sign or affix his m ark to the Will,

or have seen some other person signing the will, in the presence and

by the direction o f the testator, or have received from the testator a

personal acknowledgement o f his signature or mark, or o f the

signature o f that other person; and each o f the witnesses m ust sign

the w ill in the presence o f the testator, but it shall not be necessary

that more than one witness be present a t the same time, and no

particular form o f attestation shall be necessary. "

We have examined the impugned will, exhibit PI and we are satisfied

that it meets the requirements. The will contains the name of the deceased,

and directly below it, is his signature, which shows that the testator intended

20
to give effect to the will. The signature has been witnessed by two persons

who signed below the testator's allocated section. In law where the will is

regular on the face of it with an attestation clause and signatures of attesting

witnesses and the signature of the testator, there is a rebuttable

presumption of due execution (Omnis ese ritcatta).

Given that a will, which is regular and complete on the face of it, is

presumed to be valid until its invalidity has been established, the onus is on

the person alleging invalidity to prove such allegation. The standard of proof

is the same as that which applies in all civil cases - proof on a balance of

probabilities.

We are equally satisfied in this matter that exhibit PI, the will of the

deceased was regular on the face of it, and we find no reason to deviate

from the finding by the learned trial judge that, the will was valid. The

impugned will was signed and attested to, and there was no evidence that

could dislodge the presumption that it was properly executed. We therefore,

uphold the finding of the learned trial judge that the will was properly

executed and witnessed, and was therefore, valid.

21
 On the second limb of ground two, the appellant alleges that there was

no equity in the distribution set out in the will. However, no evidence was

adduced to show that any beneficiary was left out of the will, or not

adequately provided for as to be rendered destitute. A court can only

interfere with the wishes of a deceased person expressed in his will with

respect to distribution of his estate in exceptional situations, such as where

the will fails to provide for a dependant of the deceased either totally or

adequately. Appellant is recorded at page 10-14 of record of appeal while in

examination to have said that:

" W hen m y b ro th e r A lo y s m arried , m y fa th e r

g ave him a p lo t a t K ijic h i. M y fa th e r u se d to
sa y w hen I m arry, he s h a ii g iv e m e th e p lo t a t
M b w e n i H ow ever, u n d er th e w ill, th e p ro p e rty
a t M b w e n i is g ive n to h is w ife w ith o u t sta tin g
w hy it is n o t g ive n to m e a s he k e p t
p ro m isin g ."

With due respect to the appellant, although deceased said many times

on giving him Mbweni plot as supported by the evidence of DW2, the same

did nothappen for no apparent reason. Legally subject to the caveat, there

is no legal requirement for equitable distribution by a testator disposing of

his property in a will, and a testator has the right to dispose his property in

whatever way he desires, The distribution may be influenced by his rapport

with the dependants, and this may result in some being favoured. The

appellant as a dependant of the deceased, being his son qualified for a share

of inheritance. Nevertheless, we are not persuaded that he was not

adequately provided for in the will and so as to justify the Court interfering

with the distribution made by the deceased in his will. We agree with Mr.

Rwebangira in his submission that, considering that the deceased left behind

a valid will, his estate cannot be administered or distributed as in the case

of a deceased who died intestate, in the manner the appellant would wish.

With the above arguments ground two lack merits thus dismissed.

On ground three, the appellant's main complaint is failure by the trial

court to properly evaluate and analyze the evidence on record. Mr. Daimu

firmly submitted that, the court was duty bound to give its reasoned decision

which had to consider, evaluate and analyze the pleadings and evidence of

both sides. It had to evaluate and analyze by pointing out contradictions if

any in the adduced evidence.

 It is worth noting that this is a first appeal and the mandate of this

Court in such an appeal the law is well settled. The mandate is for the Court

to reconsider the evidence that was adduced in the trial court, evaluate it

and draw its own conclusion, bearing in mind that it did not see or hear the

witnesses, and should make due allowance in that respect. In analyzing the

evidence on record, the Court cannot introduce or address extraneous

matters that were not addressed by the trial court.

In disputing the validity of the will the appellant had relied on six

grounds which he exhaustively explained in his evidence at pages 60-68 of

the Record of Appeal and his affidavit on the following grounds: first, the

deceased made the will when he had no mental capacity due to the illness

at the moment he lost hope; second, the appellant had been disinherited

by the will as he has been given clan and family land and, forests whose

existence and identities have not been established and nobody even the

deceased's wife was or is aware of them in spite the facts that she testified

that she contributed to the acquisition of the deceased's properties since she

had a bigger salary than the deceased's salary. Third, the will was written

under undue influence to favor the wife of the deceased for the reason that
the people who participated in its making had interests; fourth, failure of

the advocate who drafted the will to disclosed the will timely even when he

read the purported will and it was the said Advocate alone who had the

custody of all copies of the will; fifth, that the will was not endorsed on

every page by the deceased and/or the witnesses and in the circumstances

of the alleged making, custody and objections of the children before it was

read; sixth, signatures of the deceased are doubtful; and names of the

deceased are different. To support his arguments, he referred the Court to

the case of the Ramki Vagella v. Mahendra Vaghella 12000] TLR 223

in which, at page 227, this Court held:

"It is settled that in order fo r a w ill to be legally

enforceable it has to be valid, and its validity in turn
derives from the capacity o f the testator and the
circum stances attending its making. A lunatic cannot
make a valid w ill during the subsistence o f his
insanity and a w ill obtained by fraud or one
im properly executed cannot count for a valid
testam ent. "

The appellant counsel has raised the issue of te sta m e n ta ry ca p a city

of the deceased while writing the will. Generally, in addition to the

25
requirement that the testator must have reached the specified age, he must

have sufficient mental capacity to understand the nature and effect of the

testamentary act; understand and recollect the nature and situation of his

or her property; and remember his or her relations and those whose interests

are affected by the will. The question is whether, as a consequence of the

sickness or impairment, the deceased was mentally incapable of

understanding the nature and effect of his act. According to the evidence of

PW1, PW2, and PW3, all testified at trial court that the deceased was of

sound mind while signing exhibit PI. Their evidence was not contradicted by

the appellant even on cross examination. To the contrary it is the appellant

who had a duty to prove his allegation on testamentary capacity of the

deceased at the trial court.

Secondly, appellant complained to have been disinherited by being

given clan land. As discussed earlier, a beneficiary cannot predict what the

testator will give him in his will. More so, a beneficiary has no control of what

or what not to be given, it is all in the discretion of the testator.

Thirdly, the appellant has raised the issue of undue influence by

deceased's wife while the deceased was preparing exhibit PI. It is worth

26
noting that the expression of a testator's last wishes must be the result of

the exercise of his, or her own volition. Any impairment to the free

expression of the testators wishes at the time the will is made may result in

a will being declared invalid. In a persuasive case from South Africa, that is

Spies NO v. Smith en Andere 1957 (1) SA 539 (A) the court pointed

out that acts such as flattery, professions of extraordinary love or respect,

meek tolerance of continual humiliation, direct requests or unusual affection

do not necessarily constitute undue influence.

To have a will declared invalid on this ground, certain principle factors

must be considered and conduct akin to coercion or fraud is required. The

question in the Spies case was whether a person who was 'mentally

retarded' was unduly influenced by his uncle, who was also his curator bonis,

in the making of a will in which the uncle's children benefited. The court

commented as to what constituted undue influence, by holding that:

"...a la s t w ill m ay in fa c t be d e d a re d in v a lid if

th e te s ta to r h a s been m oved b y a rtific e s o f
su ch a n a tu re th a t th e y m ay be e q u a te d ... to
th e e x e rcise o f co e rcio n o r fra u d to m ake a
b e q u e st th a t h e w o u ld n o t o th e rw ise have

27
 m ade a n d w hich th e re fo re exp resses a n o th e r
p e rso n 's w ill ... In su ch a case one is n o t
d e a lin g w ith th e a u th e n tic w ish es o f th e
te s ta to r b u t w ith a d isp la ce m e n t o f v o litio rf’.

The key question therefore, is whether there has been a displacement

of volition and thus whether the will contains the wishes of someone other

than the testator. The testator's mental state, his or her ability to resist

prompting and instigation; and the relationship between the people

concerned, are all factors to be taken into account. The mere existence of a

relationship of a particular kind does not give rise to a presumption that the

will of another has been substituted for the testator's will.

In another South African persuasive case of Katz and Another v.

Katz and Others (2004) 4 All SA 545 (C), it was alleged that, the testator

had been improperly influenced by his second wife to make a new will. The

Court emphasised that an allegation that one or more of the factors was

present had to be supported by evidence and that, unfounded suspicion and

speculation were not sufficient. The fact that the testator was dependent on

his wife after his stroke was not sufficient proof of undue influence. Further,

the amount of pressure resulting in invalidity may vary from case to case. In
28
the Katz case (supra) it was held that if, after the execution of a will, a

period of time elapses during which the testator could have altered the will

should he or she have wished to do so, the failure to take advantage of this

opportunity is a circumstance from which it may be inferred that the will was

not made against the testator's wishes. From the evidence on records, the

appellant has not adduced any evidence to prove that the deceased was

influenced by PW3 the wife to write exhibit PI the way it was. Equally so,

the allegations that PW1 and PW2 are friends who meet regularly does not

invalidate exhibit PI which they had witnessed.

The appellant's complaint that according to their own evidence the

three senior citizens were close friends and, to some, the relative of the

deceased who knew each other and met frequently with the wife of the

deceased than the appellant hence the possibility of supporting the

deceased's wife in influencing deceased to disinherit the appellant does not

hold water as no evidence was adduced to prove that allegation. As for the

complaint that Mr. Rutabingwa, who was the best man when the deceased

got married to PW3 and at the same time, was the petitioner's Advocate

when the deceased was divorcing the appellant's mother thus having interest

29
to Polet and in liaison with PW3, heavily influenced the deceased who was

not free thus disinheriting the appellant, is not also backed up by the

evidence on record.

Fourthly, the appellant complained of the advocate's delay to disclose

the will. There is no time limit set by the law for when to disclose the will, it

is within reasonable time. Exhibit PI was disclosed within reasonable time

according to the records, thus the complaint is without merit.

Fifthly appellant complained on exhibit PI not being endorsed at

every page. Those who witnessed exhibit PI, PWland, PW2 signed on all

necessary areas, thus the complaint is without merits

Sixthly appellant has raised the issue of forgery of deceased's

signature. It is true a will can be challenged on the ground that the document

was forged or that, despite the will being genuine, the signature appended,

intended to be accepted as the testator's signature, is forged. Where the

authenticity of the will is in question or it is attacked on the basis that it is a

forgery, evidence such as statements made by the testator, the testator's

instructions and statements of testamentary intention are also admissible.

With respect, there is no evidence to that effect. PW1, PW2 and PW3 were

30
both acquainted with the deceased signature. They both testified that exhibit

PI contains signature of the deceased. Such evidence has not been shaken

even in cross examination.

In another persuasive case of Pillay and Others v. Nagan and

Others 2001 (1) SA 410 (D) the validity of the will was challenged on the

grounds of forgery. The plaintiff challenged the signature of the testator in

the will, alleging that, it was not the testator’s. The plaintiffs bore the onus

of proving that the will was invalid, which the court accepted had been

successfully done. The plaintiffs argued that, because of the forgery

involved, the first defendant should be disqualified from receiving any benefit

from the estate. The court concluded that through such forgery, the

defendant had sought to deprive his siblings of their share of the estate and

therefore, was considered unworthy of inheriting. In the case at hand, there

was no evidence to prove that the deceased's signature was forged. To the

contrary, PW1 who had worked with the deceased for a long time identified

the deceased's signature in exhibit PI thus there was nothing like forged

signature that needed to be proved beyond reasonable doubts. In totality

complaint number six is without merit, and it is thus dismissed.

31
 The upshot of the above is that, this appeal fails in its entirety and is

accordingly dismissed. In the light of the fact that, this is a succession

dispute affecting members of the same family, we order that each party shall

bear its own costs.

DATED at DAR ES SALAAM this 8th day of July, 2024.

A. G. MWARD A
JUSTICE OF APPEAL

P. M. KENTE
JUSTICE OF APPEAL

Z. G. MURUKE
JUSTICE OF APPEAL

The Judgment delivered this 8th day of July, 2024 in the presence of

the Mr. Michael Kabekenga, learned counsel for the appellant and Mr.

Thomas Brash, learned counsel holding brief for the Mr. Eustace Rwebangira,

learned counsel for the respondent, is hereby certified as a true copy of the