CHAPTER 352
PROBATE AND ADMINISTRATION OF ESTATES ACT

[PRINCIPAL LEGISLATION]

ARRANGEMENT OF SECTIONS

   Section

Title

PART I
PRELIMINARY PROVISIONS

   1.   Short title and application.

   2.   Interpretation.

PART II
JURISDICTION IN PROBATE AND ADMINISTRATION OF ESTATES

   3.   Jurisdiction of High Court in probate and administration.

   4.   Jurisdiction of High Court to re-seal certain grants.

   5.   Jurisdiction of District Delegates.

   6.   Jurisdiction of district courts.

   7.   Consular officers.

   8.   Powers under this Act may be exercised in chambers.

   9.   Probate Rules.

PART III
PROTECTION OF ESTATES PENDING GRANT AND EXECUTORS OF THEIR OWN WRONG

   10.   Receiver pending grant.

   11.   Sale by order of court.

   12.   Application of rules relating to receivers.

   13.   Penalty for contempt.

   14.   No suit against receiver.

   15.   Receiver's lien.

   16.   Executors of their own wrong.

   17.   Liability of executor of his own wrong.

PART IV
RENUNCIATION BY EXECUTORS

   18.   Express renunciation of right to probate.

   19.   Citation and constructive renunciation.

   20.   Effect of renunciation.

PART V
GRANT OF PROBATE AND LETTERS OF ADMINISTRATION BY THE COURT

A.- General

   21.   Trust corporations.

   22.   Number of executors and administrators.

   23.   Minors and persons of unsound mind.

B.- Probate

   24.   Grant of probate.

   25.   Probate of copy, draft or contents of written wills and of the contents of oral wills.

   26.   Codicil propounded after probate.

   27.   Authenticated copy of will proved abroad.

   28.   Effect of probate.

C.- Letters of Administration with the Will Annexed

   29.   Failure of executors.

   30.   Attorney of absent executor.

   31.   Attorney of person entitled to letters of administration.

   32.   Codicil propounded after letters of administration granted.

D.- Letters of Administration on Intestacy

   33.   Letters of administration on intestacy.

   34.   Attorney of person entitled to administration.

E.- Letters of Administration for Special Purposes

   35.   Until will produced.

   36.   During minority.

   37.   During unsoundness of mind.

   38.   Pendente lite.

   39.   Collection and preservation of property.

   40.   Suits.

   41.   Trust property.

F.- Grants with Exception

   42.   Grants with exception.

   43.   Grants of excepted part.

G.- Effect of Grant of Letters of Administration

   44.   Effect of grant of letters of administration.

H.- Death of Executors and Administrators and Effluxion of Time of Limited Grants

   45.   Death of one of several personal representatives.

   46.   Death of sole or surviving personal representative.

   47.   Effluxion of time of limited grants.

PART VI
REVOCATION AND ALTERATION OF GRANTS AND REMOVAL OF EXECUTORS AND ADMINISTRATORS

   48.   Rectification of errors.

   49.   Revocation of grants and removal of executors,

   50.   Payments by or to representatives whose grants are revoked.

   51.   Surrender of revoked grants.

PART VII
PRACTICE AND PROCEDURE IN GRANTING PROBATE AND LETTERS OF ADMINISTRATION (OTHER THAN OF SMALL ESTATES)

   52.   Procedure in the Court.

   53.   Application to High Court or District Delegate.

   54.   District Delegate to stay proceedings and report to High Court in certain cases.

   55.   Petition for probate and letters of administration annexed with the will.

   56.   Petition for letters of administration.

   57.   Verification of petition.

   58.   Caveats against grant of probate or administration.

   59.   Proceedings subsequent to caveat.

   60.   Order to produce testamentary papers.

   61.   Court may examine petitioner, require further evidence and issue citations.

   62.   Time before which grant not to be made.

   63.   Grant of probate and administration.

   64.   Refusal of letters of administration.

   65.   Directions to executor or administrator.

   66.   Oath.

   67.   Administration bond.

   68.   Assignment of administration bond.

   69.   Deposit of original wills.

   70.   Conclusiveness of probate and letters of administration.

   71.   Grantee alone to act as representative.

   72.   Appeals and revision.

PART VIII

A. PRACTICE AND PROCEDURE IN APPOINTING, AND REVOKING THE APPOINTMENT OF, ADMINISTRATORS OF SMALL ESTATES

   73.   Application of Part VIII.

   74.   Selection of administrator.

   75.   Administrator-General's administration and appointment of officer of the court or impartial person.

   76.   Appointments to be under seal.

   77.   Security for due administration.

   78.   Wills.

   79.   Appointment may be for whole estate or specified assets.

   80.   Effect of appointment.

   81.   Unclaimed assets.

   82.   Revocation of appointment.

   83.   Appeals to High Court.

   84.   District Courts to make returns to High Court.

   85.   Restriction on grant of probate or letters of administration of small estates.

   86.   Validity of appointments in respect of estates exceeding ten thousand shillings.

   87.   Administration of estates under one thousand shillings.

B. ADMINISTRATION OF SMALL ESTATES

   88.   Law applicable to member of specific tribe estates.

   89.   Wills of members of tribe.

   90.-91.   [Omitted.]

PART IX
ESTATES ADMINISTERED IN ACCORDANCE WITH CUSTOMARY LAW, CUSTOM AND ISLAMIC LAW

   92.   Cases in which Act applies to estates administered in accordance with customary law and custom.

   93.   Effect of directions of High Court on orders made by primary courts.

PART X
RE-SEALING OF PROBATES AND LETTERS OF ADMINISTRATION

   94.   Interpretation.

   95.   Sealing of probates and letters of administration granted outside Tanzania.

   96.   Conditions to be fulfilled before sealing.

   97.   Security.

   98.   Duplicates and copies.

PART XI
POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS

   99.   Character and property of executor or administrator as such.

   100.   Powers in respect of causes of action and debts.

   101.   Power to dispose of property, etc.

   102.   Expenditure on care and management.

   103.   Executor or administrator not to derive benefit from office.

   104.   Powers of several executors or administrators exercisable by one.

   105.   Powers of special personal representatives.

   106.   Provision for funeral.

   107.   Inventory and accounts.

   108.   General duties of administration.

   109.   Order of payment of debts.

   110.   Debts to be paid before legacies.

   111.   Abatement of general legacies and equality of legacies.

   112.   Abatement of specific legacies.

   113.   Right to demonstrative legacy.

PART XII
LEGACIES AND ANNUITIES

   114.   Assent necessary to complete legatee's title.

   115.   Assent to specific legacy.

   116.   Assent of executor to own legacy.

   117.   Effect of executor's assent.

   118.   Commencement of annuities when no time fixed by will.

   119.   Payment of annuities when time fixed.

   120.   General provisions as to annuities.

   121.   Investment in securities authorised by Probate Rules.

   122.   Contingent bequests.

   123.   Directions of testator as to investment.

   124.   Minors entitled to immediate payment or possession.

   125.   Produce of legacies.

   126.   Interest on general legacies.

   127.   Interest on annuities.

   128.   Residue to be paid to residuary legatee.

   129.   Transfer of assets from Tanzania to executor or administrator in country of domicile.

PART XIII
REFUNDING OF LEGACIES

   130.   Refund of legacy paid under court order.

   131.   No refund if paid voluntarily.

   132.   Refund when legacy becomes due on performance of condition with further time allowed.

   133.   When legatees compellable to refund in proportion.

   134.   Distribution of assets.

   135.   When creditor may call upon legatee to refund.

   136.   Legatee's rights to require other legatees to refund.

   137.   Refunding to be without interest.

PART XIV
DEVASTATION

   138.   Liability for misapplication.

   139.   Liability for neglect.

PART XV
ADMINISTRATION OF WAKF PROPERTY

   140.   Interpretation.

   141.   Wakfs to be valid and effective.

   142.   Constitution of Wakf Commission.

   143.   Wakf Commission to be a body corporate with a common seal.

   144.   Meetings and quorum.

   145.   Register of Wakf property and trustees.

   146.   Wakf Commission may hold an inquiry and take over administration of wakfs.

   147.   Trustees of wakfs may be called upon to produce evidence of proper administration of their trusts.

   148.   Certain contracts or agreements relating to wakf property must be sanctioned by Wakf Commission.

   149.   Titles to wakf property shall not be acquired by prescription or adverse possession after commencement of this part.

   150.   How wakf property to be administered.

   151.   Wakf Commission may dispose of wakf property in certain circumstances.

   152.   Permission requisite to build mosques or establish cemeteries.

   153.   Fees.

   154.   Accounts and audit.

   155.   Banking accounts.

   156.   Rent Restriction Act not to apply to wakf properties.

   157.   Penalties.

   158.   Regulations.

PART XVI
ISLAMIC ESTATES (BENEVOLENT) PAYMENTS

   159.   Discretion of district officer to make payments.

PART XVII
MISCELLANEOUS, PROVISIONS

   160.   Provisions applied to administrator with will annexed.

   161.   Depository of the wills of living persons.

   162.   Affidavits in the case of trust corporations.

   163.   Validity of testamentary dispositions and rights to maintenance preserved.

   164.   [Amendment of certain Ordinances.]

   165.   Certain Acts disapplied.

   166.   Savings.

   167.   Transitional provisions.

   168.   Saving of powers of Administrator-General and Public Trustee.

SCHEDULES

CHAPTER 352
THE PROBATE AND ADMINISTRATION OF ESTATES ACT

An Act to provide for the grant of probates of wills and letters of administration to the estates of deceased persons, to make certain provisions with regard to the powers and duties of executors and administrators; administration of wakf property; benevolent payments in Islamic estates, and related matters.

[1st March, 1963]

[R.L. Cap. 445]
[R.L. Cap. 29]
[R.L. Cap. 30]
[R.L. Cap. 326]
Acts Nos.
9 of 1963
55 of 1963
33 of 1964
9 of 1965
41 of 1966
18 of 1970
23 of 1971
3 of 1979
12 of 1979
10 of 1987

PART I
PRELIMINARY PROVISIONS (ss 1-2)

1.   Short title and application

   (1) This Act may be cited as the Probate and Administration of Estates Act.

   (2) Subject to the provisions of section 87 and Part IX, this Act shall apply to the administration of the estates of all persons dying domiciled, or leaving property, in Tanzania whether before, on or after the date upon which it comes into operation.

2.   Interpretation

   (1) In this Part, unless the context otherwise requires–

   "administrator" means a person appointed by the court to administer the estate of a deceased person when there is no executor or no executor is able and willing to act, and includes, when Part VIII applies and subject to the provisions thereof, a person appointed an administrator under that Part;

   "codicil" means an instrument made in relation to a will, and explaining, altering or adding to its dispositions;

   "contention" in relation to a grant of probate or letters of administration means the appearance of any person to oppose the application for the grant, and "contentious" has a like meaning;

   "court" means the High Court and includes, in any case in which a District Delegate has jurisdiction, a District Delegate, but does not include a district court;

   "demonstrative legacy" means a legacy directed to be paid out of specified property;

   "district court" has the meaning ascribed thereto in the Magistrates Courts Act *;

   "District Delegate" means a resident magistrate appointed a District Delegate under section 5;

   "executor" means a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided;

   "general legacy" means a legacy other than a specific or demonstrative legacy;

   "Minister" means the Minister responsible for legal affairs;

   "probate" means the copy of a will, or, in the case of an oral will, a statement of the contents thereof, certified under the seal of the court, with a grant of administration to the estate of the testator;

   "Probate Rules" means rules made under section 9;

   "rules of Court" include rules of court made by the High Court under section 4 of the Judicature and Application of Laws Act * and the rules contained in or made under the Civil Procedure Code *;

   "small estate" means an estate the gross value of which a court, district court of other authority having jurisdiction in probate or administration is satisfied does not exceed ten thousand shillings;

   "specific legacy" means a legacy of specified property;

   "trust corporation" means–

   (a)   the Public Trustee; or

   (b)   the Administrator General; or

   (c)   any incorporated-banking or insurance or guarantee or trust company which has a capital (in stock or shares) for the time being issued of not less than two hundred and fifty thousand pounds, of which not less than one hundred thousand pounds shall have been paid up in cash; or

   (d)   any body corporate which has a capital (in stock or shares) for the time being issued of not less than two hundred and fifty thousand pounds, of which not less than one hundred thousand pounds shall have been paid up in cash, and which is for the time being empowered (by Act of Parliament of the United Republic charter, memorandum of association, deed of settlement or other instrument constituting it or defining its powers) to undertake trusts, but for so long a time only as such body corporate shall not, by any prospectus, circular, advertisement or other document issued by it or on its behalf, state or hold out that any liability attaches to the Public Trustee or to the general revenue of the United Republic in respect of any act or omission of such body corporate when acting as an executor or administrator; and

    "will" means the legal declaration of the intentions of a testator with respect to his property, which he desires to be carried into effect after his death.

   (2) Notwithstanding anything contained in the definition of "trust corporation" in subsection (1) of this section, a company or body corporate which would be a trust corporation but for the fact that it does not for the time being fulfil the requirements as to capital in paragraphs (c) or (d) of the said definition may act as executor or administrator in any case with the leave of the High Court and on giving such security as the High Court may determine, and thereupon for the purposes of so acting as executor or administrator shall be deemed to be and to have the powers, rights and duties of a trust corporation under this Act.

PART II
JURISDICTION IN PROBATE AND ADMINISTRATION OF ESTATES (ss 3-9)

3.   Jurisdiction of High Court in probate and administration

   The High Court shall have jurisdiction in all matters relating to probate and the administration of deceased's estates, with power to grant probates of wills and letters of administration to the estates of deceased persons and to alter or revoke such grants.

4.   Jurisdiction of High Court to re-seal certain grants

   The High Court shall have jurisdiction to re-seal grants of probate and letters of administration made by a court of probate in any part of the Commonwealth in accordance with the provisions of Part X of this Act.

5.   Jurisdiction of District Delegates

   (1) The Chief Justice may, from time to time, appoint such resident magistrates as he thinks fit to be District Delegates.

   (2) A District Delegate shall have jurisdiction in all matters relating to probate and administration of estates with power to grant probate and letters of administration of estates if the deceased, at the time of his death, had his fixed place of abode within the area for which the Delegate is appointed–

   (a)   in non-contentious cases;

   (b)   in contentious cases, if the Delegate is satisfied that the gross value of the estate does not exceed fifteen thousand shillings, or the High Court authorises the Delegate to exercise jurisdiction in such circumstances as are specified in subsection (3).

   (3) No act of a District Delegate exercising jurisdiction in probate or administration of estates shall be invalid by reason only that it is afterwards discovered that the gross value of the estate exceeded fifteen thousand shillings, but where the District Delegate becomes aware of such circumstances in any contentious case, he shall report the matter to the High Court which shall either direct the transfer of the proceedings to itself or authorise the Delegate to exercise jurisdiction therein.

   (4) A District Delegate shall not have jurisdiction to exercise any of the powers herein expressly conferred on the High Court.

6.   Jurisdiction of district courts

   (1) A district court presided over by a district magistrate shall have jurisdiction in the administration of small estates, with power to appoint administrators of small estates using the form specified in the Fourth Schedule to this Act, where the deceased died within the jurisdiction of the court.

   (2) The jurisdiction of a district court shall be exercised in accordance with the provisions of Parts VIII and IX.

7.   Consular officers

   (1) Where any person who is a national of a State to which this section applies is named as executor in the will of a deceased person disposing of property in Tanzania, or is otherwise a person to whom a grant of representation to the estate in Tanzania of a deceased person may be made, then if the court is satisfied, on the application of a consular officer of the said State, that the said national is not resident in Tanzania, and if no application for a grant of such representation is made by a person duly authorised by power of attorney to act for him in that behalf, the court shall make to that officer any such grant of representation to the estate of the deceased as would be made to him if he were so authorised as aforesaid.

   (2) Letters of administration granted to a consular officer shall be granted to him in his official style and title and not in his personal name, but the person officiating as such consular officer shall personally take the administrator's oath. Such letters of administration and the estate of the deceased shall pass from such consular officer to his successors in office, and shall vest in each such consular officer for the time being during his continuance in office without any order of the court or any conveyance, assignment or other instrument whatsoever.

   (3) Sureties shall not be required to an administration bond given by a consular officer upon the grant of any letters of administration by virtue of this section.

   (4) Where any person who is a national of a State to which this section applies–

   (a)   is entitled to any money or other property in Tanzania forming part of the estate of a deceased person, or to receive payment in Tanzania of any money becoming due on the death of a deceased person; or

   (b)   is among the persons to whom any money or other property of a deceased person may, under any Act whether passed before or after the commencement of this Act, be paid or delivered without grant of probate or other proof of title, then if the said national; is not resident in Tanzania, a consular officer of that State shall have the right and power to receive and give a valid discharge for any such money or property as if he were duly authorised by power of attorney to act for him in that behalf:

   Provided that no person shall be authorised or required by this subsection to pay or deliver any money or property to a consular officer if it is within his knowledge that any other person in Tanzania has been expressly authorised to receive that money or property on behalf of the said national.

   (5) Notwithstanding any rule of law conferring immunity or privilege in respect of the official acts and documents of consular officers, a consular officer shall not be entitled to any immunity or privilege in respect of any act done by virtue of powers conferred on him by or under this section, or in respect of any document for the time being in his possession relating thereto.

   (6) This section applies to the States specified in the First Schedule, and the Minister may, by order in the Gazette, add to or delete from the First Schedule, any foreign State.

8.   Powers under this Act may be exercised in chambers

   Subject to any Probate Rules in that behalf, the jurisdiction of the court or a district court under this Act may be exercised in chambers–

   (a)   in non-contentious cases; and

   (b)   in contentious cases to the same extent as jurisdiction may be exercised in chambers in a suit conducted in accordance with Civil Procedure Code * or any enactment replacing the same or any rules of court.

9.   Probate Rules

   The Chief Justice may make Probate Rules for regulating proceedings for the grant of probate and letters of administration or the appointment of an administrator, for such purposes as, in this Act it is provided that Probate Rules may be made, for the preservation, and copying and inspection of wills, grants of probate and administration of estates and appointments of administrators, for fees including fees payable to administrators appointed under subsection (1) of section 75 and forms, and generally for the better carrying out of the provisions of this Act.

PART III
PROTECTION OF ESTATES PENDING GRANT AND EXECUTORS OF THEIR OWN WRONG (ss 10-17)

10.   Receiver pending grant

   Where any person dies leaving property within Tanzania, the court may, if it appears on the application of the Administrator-General or of any person claiming to be interested in such property, or having the custody or control thereof at the time of the death of the deceased, or being at such time an attorney of the deceased, that there is danger that such property may be wasted, appoint the Administrator-General or such other person as the court thinks fit, to be a receiver of such property pending a grant of probate or letters of administration.

11.   Sale by order of court

   The court may, on application by a receiver appointed under section 10, or any person interested in the estate, order the sale of the whole or any part of such property, if it appears that such sale will be beneficial to the estate.

12.   Application of rules relating to receivers

   A receiver appointed under section 10 shall be subject to all rules of court relating to receivers generally:

   Provided that neither the Administrator-General nor the Public Trustee shall be required to furnish security.

13.   Penalty for contempt

   Any person who, without lawful authority, removes or attempts to remove from Tanzania any portion of the property of which a receiver has been appointed under section 10, or destroys, conceals, or refuses to yield up the same to the receiver, commits an offence and on conviction is liable to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding six months or to both such fine and imprisonment.

14.   No suit against receiver

   No suit shall be brought against a receiver appointed under section 10 in relation to anything done or intended to be done by him in respect of the property of the deceased in exercise or intended exercise of the powers vested in him; but any person aggrieved by anything so done, or intended to be done, may apply to the court for directions in the matter, and the court may make such order as is just.

15.   Receiver's lien

   A receiver appointed under section 10 shall have a lien upon the property entrusted to him for all costs and expenses properly incurred by him in the exercise of his duties as such receiver.

16.   Executors of their own wrong

   A person who intermeddles with the estate of the deceased or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself an executor of his own wrong:

   Provided that–

   (a)   intermeddling with the goods of the deceased for the purpose of preserving them or providing for his funeral or for the immediate necessities of his family or property; or

   (b)   dealing in the ordinary course of business with goods of the deceased received from another; or

   (c)   action by an administrative officer under section 14 of the Administrator-General (Powers and Functions) Act *;

   (d)   action by a receiver appointed under section 10,

does not make an executor of his own wrong.

17.   Liability of executor of his own wrong

   Where a person has so acted as to become an executor of his own wrong, he is answerable to the rightful executor or administrator, or to any legatee or creditor of the deceased, to the extent of the assets which have come into his hands, after deducting payments made to the rightful executor or administrator, and payments made in due course of administration.

PART IV
RENUNCIATION BY EXECUTORS (ss 18-20)

18.   Express renunciation of right to probate

   A person who is entitled to probate may expressly renounce his right to such grant orally on the hearing of any application or in writing signed by the person so renouncing and attested by any person before whom an affidavit may be sworn.

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