(The Existed Doctrine of Absolute Testamentary has been modified with strict terms)

The Doctrine of Absolute Testamentary is the principle which confers the testator with testamentary capacity to undisputed discretionary power without any limitation to dispose his estate by his “LAST WILL”

This doctrine empowers the testator of a will to have unlimited freedom to bequeath his estate to whomever person is pleased or to disinherit any person including his own family members who are related to him by blood, marriage and adoption. 

This has been the  position since then as the provision of section 46 of the Indian Succession Act, No.10 of 1865 gives freedom to every person of a sound mind and of majority age to dispose his property by his Last WILL.There is no provision in the Indian Succession Act, 1865 or in any other written law which expressly imposes any limitations to or dictates the testator to mandatory terms for him to bequeath his property by his Last “WILL” to persons he is related to by blood,marriage or adoption. 

It is the rigidity of this legal regime that has inspired His Lordship,  MLYAMBINA J, to modify this Doctrine which sounds unfair and unjust by highlighting the exceptions of the Doctrine of Absolute Testamentary Rule vide the Probate and Admnistration Cause No.39 of 2019. between Benson Benjamin Mengi and Others versus Abdiel Reginald Mengi and Another.

His Lordship, MLYAMBINA J, has modified the Absolute Testamentary Freedom Doctrine and introduced the Restrictive Testamentary Doctrine which empowers the testator shall to bequeath as he wishes but subject to the following limitations;

(a) When there are assets jointly acquired by the testator and his spouse, the testator shall have no power to make testamentary disposition in the share of the surviving spouse

(b) Testamentary power shall be limited by Statutory Heirs Rules( must bequeath to his biological or whoever depended on him prior to his death and adoptive children)

(c) Testator must have legal capacity to make testamentary disposition through his Last WILL ( Must be of sound mind and attained age of majority)

(d) Any testamentary bequest must be in line with public policy of Tanzania and must be non discriminatory 

(f) Any testamentary bequest must be in accordance with positive laws of Tanzania. 

However, a parent or spouse may disinherit his sons, daughters or wife in the following circumstances; 

(a) Where the son or daughter of the testator commits adultery with a spouse of the testator 

(b) Where the spouse committs adultery with son or daughter of the testator 

(c) Where a son, daughter or spouse attempts to murder the testator or his spouse 

(d) When the son, daughter or spouse neglects to look after testator in hunger, sickness or old age without justifiable reasons 

(e) Mistreatment of testator by words or deeds 

(f) When the son, daughter or spouse by fraud, violence, intimidation or undue influence causes a testator to make or change a WILL

(g) Any other ground as the court may determine to be sufficient cause.

For a WILL to be valid, there is a number of legal requirements that must be observed. For further guidance and legal opinion in this field consult us