The High Court Compels Parents and Spouses to Bequeath To Their Biological Family Members.
March 16, 2022

(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

Victory Attorneys & Consultants © 2022

Augustine Dominic Shio

Managing Partner

Augustine Dominic Shio is also known as Mr Shio is a highly sought-after and widely recognized criminal law expert with more than 30 years of experience advising and assisting corporations and individuals charged with white-collar crimes.

Overview

Before founding the firm Mr Shio held several positions in the public sector, he served as a Principal State Attorney at the Attorney General’s Chambers, Legal Advisor at the President’s Office (Commission for Enforcement of the Leadership Code), Director of Legal Services and Complaints at the Ministry of Home Affairs and retired as a Deputy Director of Public Prosecutions at the Directorate of the Public Prosecutions.

Mr Shio is a recipient of the Presidential Medal for his distinctive public services and ethics of the highest order. His distinguished aptitude in handling complex criminal cases, particularly money laundering, economic and organized crimes has enabled the firm to handle high profile criminal cases in Tanzania.

Practice Focus

As the firm’s head of the Financial & Organized Crimes Department, Mr Shio represents corporations and individuals in the telecoms, media & ICT, mining, oil & gas and banking sectors in high profile criminal cases. He has advised and prepared legal compliance models and for large scale agribusiness operators, public listed companies and securities dealers and brokers in line with sector-specific laws.

He possesses vast experience in advising multinational corporations on money laundering and tax evasion throughout the life span of their commercial transactions.

Mr Shio has represented clients in major plea bargaining negotiations at the office of the Director of Public Prosecutions. He is renowned for closing some of the best pleas deals in the country on behalf of many locals and expatriates charged with money laundering, economic and organized crimes and cybercrimes. Additionally, Mr Shio consults and assists criminally charged individuals to secure pre-trail and post-trial bail on serious criminal charges.

Education

Mr Shio holds a Bachelor’s Degree (LL.B Hons) from the University of Dar es Salaam, Certificate in Criminal Justice and Treatment of Offenders from the United Nations Institute (Fuchu, Japan). He is a certified criminal law expert in Money Laundering and Terrorism.

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