DAR ES SALAAM: THE Court of Appeal of Tanzania has categorically stated that there is no legal requirement for equitable distribution by a testator disposing of his/her property in a will and a testator has the right to dispose his property.
Court of Appeal Justices Augustine Mwarija, Panterine Kente and Zainab Muruke made the remarks recently while dismissing Civil Appeal No 530/2022, which was filed by Allen Rutatekururwa (Rugazia).
Rutatekururwa filed the appeal complaining, among other things, that during his lifetime, the late Projest Aloys Rugazia, who was his father, had promised to give him a plot at Mbweni, Kinondoni, in Dar es Salaam.
However, in the will, the plot was given to the wife of the deceased identified as Judith Kokumanya, without there being a reason of the deceased not keeping his promise.
Records indicate that on September 13, 2022 the High Court of Tanzania, Temeke Registry (Mugeta, J) delivered a judgement in a succession dispute relating to the estate of the late Projest Aloys Rugazia, who died on August 4, 2019, following an illness.
He left his wife Judith Kokumanya Rugazia and his two sons- Aloys Rwehabura Rugazia and Allen Rutatekururwa 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 (Parfectus Ruteganya), 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.
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Following the institution of the petition for probate and the issuance of the general citation in the government gazette, Rutatekururwa being one of the deceased’s sons filed a caveat challenging the validity of the will.
After citation to caveat and filing of all necessary documentation, the trial court then proceeded with the hearing in which the Respondent (Ruteganya), called six witnesses to prove the validity of the will, whereas, Rutatekururwa 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 (Ruteganya) was appointed the executor of the deceased’s will.
However, dissatisfied with the High Court judgement, Rutatekuruwa filed the Appeal raising four grounds of appeal, namely: That 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 Revised 2019) and Rule 82 (6) of the Probate Rules, 1963 (BN NO 369 of 1963.
He also argued that the High Court erred in law and fact when it failed to hold that the Appellant was constructively disinherited and thus invalidate the Will and that the High Court erred when it failed to properly evaluate and analyse the evidence on record, Also, that the High Court erred in law when it failed to consider evidence in form of Affidavit which contains evidence that the Will is invalid.
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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 Odhiambo Kobas, both learned Counsels jointly represented the Appellant (Rutatekururwa), whereas Eustace Rwebangira, also learned Counsel, represented the Respondent (Ruteganya). Mr Daimu insisted 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, Mr Rwebangira submitted that the Appellant’s Counsel has not, authoritatively, shown which mandatory requirements of law were not followed. Also, the Counsel did not mention or demonstrate what could have been special pleadings and procedures to be followed.
Mr Daimu submitted that the Appellant disputed and is still disputing the validity of the will of his late father. Giving their judgment, Court of Appeal Justices Augustine Mwarija, Panterine Kente and Zainab Muruke said, inter alia… We are satisfied in this matter that exhibit P1 (the will of the deceased) was regular on the face of it and we find no reason to deviate from the findings 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 trial judge that the will was properly executed and witnessed, and was therefore, valid.,” they said.
“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/she desires to take effect after his/her death. It is a unilateral document that takes effect after the death of the person making it.” 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,” they concluded.
