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Dying without leaving a will
2006-08-28 08:08:15
By Keregero Keregero
Our discussion today boils down to the choice of law to be applicable to distribute the estate of a person who dies leaving no Will.
Experience has shown that in Tanzania most people hardly know which law will be used to distribute their estate upon death.
Worse still, a good number of even those who remain behind as relatives of the deceased do not know the particular law to be used, too.
Moreover, the doctrine of the choice of law has been reinforced by a number of other statutes that come into play in relation with inheritance matters.
These include but are not limited to the Land Act, the Village Land Act, laws relating to various social security schemes.
Whatever their scope, at the end of the day, all these laws converge at one necessity, requiring the choice of law to be used to be made by the Court.
Suffice to note that even when a husband takes a life insurance policy in favour of his wife; the wife will not automatically get the money if her husband dies.
This is especially where the policies of life Insurance in question constituted a bulk of the deceased estate which was being disputed.
Before distribution is made of that money accruing from life insurance, a choice of law, as a matter of law, has to be made by the court which will govern the distribution of the estate in question.
Equally important, the significance of the choice of law can be visualised in determining the burial place of the deceased.
Where the widow will decide to bury her husband depends on the crucial choice of law to be made by the Courts.
The crucial question over the deceased’s burial place is a real issue if not agreeably handled may finally land in Court as a serious dispute threatening to blow apart antagonistic parties.
The matter cropped up in a dramatic form in Kenya in 1987 regarding the lawyer Silvanus Otieno.
In that case the deceased was a Luo who had married a Kikuyu woman. He had suddenly died.
The brother of the deceased wanted to bury the deceased at his birth place near Lake Victoria in accordance with tribal custom.
On the other hand, the widow wanted to bury her husband at their farm on the outskirts of Nairobi.
However, invoking the mode of life test in making a choice of law, the Court of Appeal of Kenya, conclusively decided in favour of the deceased’s brother that customary law was applicable.
The dead body stayed in the mortuary for months before the decision of the court was given.
There is therefore no doubt that the need for the choice of law to be used by Courts to govern the distribution of the estate of the deceased should assume paramount importance and recognition.
Kindly bear in mind, as you read on, the three types of laws we learnt thereof in our previous discourse: Statutory law, Customary law and Islamic law.
In determining the issue of which law should be applicable our law provides two tests which the Court ought to consider: First and foremost, there is the test for determining whether Statutory law or Customary law is applicable.
Secondly, where Statutory law is not applicable, then which law is applicable between Customary law and Islamic law to the particular African, becomes an inevitable question.
The law provides what is known as the Mode of Life test for Statutory Law or Customary Law.
This test has its basis and draws its legality from the provisions of the Judicature and Application of Laws Ordinance, Cap.453 of 1961.
The section provides for the application of Customary law and empowers Courts to exercise jurisdiction in accordance therewith, in matters of a civil nature, relating to any matter, or status or succession to a person who is or was a member of a community in which rules of customary law relevant to the matter are established and accepted.
The case of Re Innocent Mbilinyi (1969) H.C.D. n. 283 best illustrates the application of the mode of life test.
Briefly, in that case Ngoni had married a Chagga girl under a Christian marriage. The married couple was staying in Dar es Salaam.
The deceased had left Songea when he was about 7 years and had been educated entirely outside the Region until he got a B.A. degree.
They very rarely visited their normal homes in Songea or Moshi. They had three children.
The widow argued that statutory law should apply so that she could get some inheritance.
On the other hand the brother of the deceased argued that customary law should apply, so that the widow should be excluded from inheritance.
The High Court, Georges C.J as he then was, held that ”the deceased had abandoned the customary way of life in favour of what may be called a Christian and non-traditional way.
There is satisfactory evidence that he was to a large extent alienated from his family and that his children had no connection whatever with them.’’ Statutory law was therefore held to apply.
There is also the case of George s/o Kumwenda Vs Fides Nyirenda:(1981) T.L.R. 211.
The material facts of this case are such that the deceased Marten Kumwenda was a Malawian national living at Temeke in Dar es Salaam and had left a house.
The respondent (deceased’s wife) wanted to inherit the house under Statutory law. However, the brother of the deceased (appellant) wanted Customary law to be used in order that the widow should not get the house, but that the house be sold and the money be distributed to the brother, sisters, parents and children of the deceased.
The Primary Court decided to invoke Customary law but the District Court preferred to apply Statutory law.
But the High Court (Kisanga, J.) held that both Courts below had erred as they made little effort to investigate as to what mode of life the deceased lived, and therefore the choice of law was more or less arbitrary. A retrial was ordered.
However, in case of Africans living in the villages or rural areas, the presumption is that Customary law is always applicable rather than the Statutory law.
That is a general principle as propounded by Justice Onyiuke in the case of Abdallah Shamte Vs Mussa (1972) H.C.D. n.9.
Intention of the Deceased is the other test the Court could consider in the distribution of the estate of the deceased under Customary law or Islamic law.
When an African is also a Moslem, there is also a problem as to which law is applicable as between customary law or Islamic law.
This test falls under the ambit of s.19(1) of the Administration (Small Estates) Ordinance, Cap.30 which states:’The estate of a member of a native tribe shall be administered according to the law of that tribe unless the deceased at any time professed the Mohamedan religion and the Court exercising jurisdiction over his estate is satisfied from the written or oral declarations of the deceased or his acts or manner of life that the deceased intended his estate to be administered either wholly or in part according to Mohamedan law, in which case the estate shall be administered either wholly or in part, as the case may be, according to that law.”
The input of the above quoted section no doubt throws overboard and renders it wrong, the thinking by many people that because one dies professing a Moslem religion, then Islamic law will automatically govern the distribution of his estate.
Thus, the estate of the deceased Moslem can be distributed either under customary law or Islamic law.
This is clearly illustrated in the case of Re Kusundwa (1965) E.A.248 (T).
In that case, Sir Ralph Windam C.J said ’It was sometimes thought that because a man was converted to Islam, then he was released from Customary law, but that is wrong.’
In that case a mode of life test was invoked because the deceased Moslem had left no written or oral declarations. From the deceased’s acts and manner of life it was found that the deceased intended Islamic Law to apply after his death.
The same was invoked in the case of Tatu Abdallah Vs Waziri Mussa (1975) L.R.T. n.7.
The brief facts thereto point to the fact that some Zambians came to settle in Dar es Salaam. They became Moslems.
In that case Justice Katiti also invoked the mode of life test because the deceased had left no written or oral declarations.
Thus Moslem law was held to govern the distribution of the estate.
Another interesting case is that of Mussa Makono Vs Rehema Hassan(1967) H.C.D. n. 159.
In that case the brief material facts are to the effect that the parties were Ngoni and Moslems by religion.
They lived in Dar es Salaam. Georges C.J held that, as there was nothing in the circumstances to show that the parties intended their religious law to apply as their personal law rather than their tribal law, then the Ngoni customary law should apply.
To crown it all in the case of The Matter of the Estate of the late Salum Omari Mkeremi (1973) L.R.T. n.80, Justice Mfalila held that the deceased’s manner and way of life was far removed from his tribal customs, consequently the deceased estate had to be administered in accordance with Moslem law of succession and not the Hehe Customary law of succession.
The Judge had applied the mode of life test (that he was practising Moslem) and concluded that the deceased intended his estate to be governed by Moslem law.
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