Inheritance: Children born out of wedlock, faith, law

DAR ES SALAAM: INHERITANCE right stems out of death. Customarily, when a person passes away, those surviving him have the responsibility of burying the body according to the customs, traditions, or faith that the deceased followed during his lifetime.

Legally however, it is the duty of the administrator to cover the costs of burying a deceased through his estate but practically costs are covered by the society.

After the burial, it is tradition for most Tanzanian societies to hold a family or clan meeting to discuss family matters.

Issues that are commonly discussed, among other things include, identifying deceased’s properties, identifying of heirs, debts and propose a fit person to administer his estate.

If the deceased died testate, the will is also expected to be revealed and read at this meeting.

At the conclusion of the meeting, usually minutes are prepared and it has been a long-accepted practice the same shall be produced and submitted to the court for the appointment of an administrator.

The object of the minutes is merely to inform the court of the fit and trustworthy person at a family level.

However, despite its importance, not being a legal requirement, failure to hold a family meeting especially where it is impossible due to misunderstandings, does not take away the right to petition for grant of probate or letters of administration.

The most sensitive and important document is the deceased’s death certificate, which confirms death of a person and the deceased’s will, if the deceased died testate.

Legally, upon appointment, the executor or administrator as the case may be has about three main functions.

These includes, collecting the deceased’s estate, paying for his funeral/debts and distributing the residue to the beneficiaries.

While the first and second are usually not very challenging, the latter is often the source of most contentious and over prolonged probate and administration cases.

The disputes range from who is legally qualifies to inherit from the deceased’s estate to what each beneficiary is entitled from the estate.

Under the Indian Succession Act, Islamic law as well as customary law, inheritance right follows three main factors.

These are; bloodline or consanguinity relationship where children have the right to inherit from their parents, parents right to inherit from their parted children (parents are heirs because in most of our communities, once aged, a father or mother falls under the protection of his children to the end of his or her life), the marital relationship which entitles spouses to inherit from each other’s estate and the relationship between a parent and an adopted child which gives the child the same status as biological children including the right to inherit from their adoptive parents’ estate.

Beyond that, a person may also derive a right to inherit the deceased’s estate from a Will.

A Will which carries the deceased’s instructions as to the affairs of his estate, can accord a person a right to inherit from the estate even where they do not possess those qualifications.

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Important factors which determine the legality of a Will, include: free will of the testator, Will must be properly signed by the testator and appropriately witnessed and the property witnessed must belong to the deceased.

The other relevant factors is a proper adherence to the applicable or governing law.

Despite possessing the above qualifying factors, there is wide misconception in the society on the inheritance right of a child born out of wedlock.

As I have above pointed out, inheritance laws in our jurisdiction are divided into three main categories: state laws, religious laws and customary laws.

State law applies to the administration of estate where the deceased neither followed the principles of Islamic faith nor Customary laws. People falling under this category includes Christians, Hindus, Atheists, etc.

On the other hand, for persons who followed Islamic faith, their estate shall be administered in accordance with Islamic laws; whereas those who lived a customary life, customary laws shall apply.

The problem facing inheritance of the child out of the wedlock is rooted deep on the two latter set of laws i.e. the Islamic and Customary laws.

In both set of laws, a child born out of the wedlock has no right to inherit from the father.

The Qur’an which is the Holy book in the Islamic faith, along with the Hadith of Prophet Muhammad (Sunnah), prohibit a child born out of wedlock from inheriting from their father.

It strongly condemns adultery and illicit sexual relationships.

The act of adultery is a grave sin in Islam and a child born therefrom has no right to inherit.

Notably, the Holy book does not hold such a child responsible neither does it press a blame to innocent child for the circumstances of his birth.

This means, on the other words, that it is an adulterous act which is condemned in Islam, to the effect that a child is legitimately attributed to the biological mother and it is from her that the child can inherit.

In fact, the Holy Qur’an, has provided a complete procedure, listed heirs and described their respective shares out of the deceased Muslim.

Unlike the Holy Bible, the Qur’an provides comprehensive and detailed verses regarding priorities before the distribution of a deceased’s estate in the administration process.

Surah An-Nisa of the Qur’an categorically provides for heirs and their fixed shares, meaning that if a Muslim person dies intestate, their estate must be distributed in accordance with the Holy Qur’an.

It suffices to say that in Islam, neither categorisation of heirs nor rules of distribution are governed by state laws.

It is for this very reason that a child born outside wedlock is not entitled to inherit from their father.

Alternatively, the Holy Qur’an allows a Muslim person to bequeath 1/3 of their estate to any person through a Will.

This portion can also be used to protect the right of the child born outside wedlock to inherit from their father through what is called hibbah (gift).

Due to ignorance of the law but sometimes also sheer greed, those who live traditionally and those who follow Islamic religion, have cited these laws as the basis of deprive the children born out of the wedlock of what is basically their birth legal rights to inherit from their paternal fathers.

I have used the phrase “deprive of their right” purposefully as it is indeed their legal right. My position in this regard finds basis on two fronts.

The first reasons lie on another Constitutional right under article 12 and 13 of the Constitution. The provisions are basically closely related.

Whereas the former provides for equal rights between humans, the latter insists on the equal rights before the law and restricts the enaction of any law that segregates.

It follows therefore that the application of the two sets of laws which segregates children born out of the wedlock, is unconstitutional and illegal.

Additionally, even though it remains debatable whether it could apply to even adult claiming inheritance from the estate of the deceased father’s, the Law of the Child Act, Cap 13 also guarantees the right of the child born out of the wedlock to inherit from their paternal parent.

This law has been the basis behind numerous court decisions including the case of Miraji Salimu Nyangasa vs Ramadhani Omary Sewando (As Administrator of Estate of the Late Hussein Omary Sewando) Civil Appeal No 686 of 2023 CA- Morogoro.

In this case, the Court of Appeal, whose decision is precedent to all other courts, insisted that the question as to whether the child born out of the wedlock is a settled matter.

The court held that, “The rule is that, all children are born equal and have a right to inherit from their parents without discrimination”.

On the other hand, the second point lies on the applicability Islamic and customary laws. It is worth noting that, the right to religion is one of the fundamental human rights guaranteed by Article 19 (1) of the Constitution, however, the same is not without restrictions.

The application of these two sets of laws in our country which has been made possible through the Judicature and Application of Laws Act, Cap 358 RE 2019 (see section 11), have several restrictions under the proviso to section 11(3) of the Act.

The restrictions range from abolition of its applicability, prohibition and declaration that it is declared unlawful or expressly or impliedly disapplied or superseded by any written law.

That being the case, since the two sets of laws do contrive the constitution as well as the child Act, in regard to the inheritance right of the child born of the wedlock, their application in the country is restricted to that extent.

Nevertheless, at this end I must demonstrate that, to evade conflicts, protect your family against animosity and your estate against plunder and loss, it is advisable to resort to a Will.

A well drafted Will ensure your wishes are honoured, your loved ones and dependents are protected, simplify the estate administration process and prevent family disputes and conflicts when you are gone!