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Q&A – 10 October 2016

Divorced wife beneficiary on Will

My father had made his Will prior to divorcing my mother. He said that he gives her, as his wife, a property that she is currently living in even though they were divorced. My father did not remarry but his brothers are now challenging the Will saying that it was automatically revoked once he divorced my mum. They are challenging the Will in Court saying that this is a mistake and that she should not inherit anything. For your information my mum and wife got along very well even after the divorce. What is the position of the law?
CO, Dar

When one marries, the law dictates that any Will made prior to the marriage has no legal effect. However the law is silent on what happens to a Will when the testator, being the husband, divorces his wife having mentioned her in the Will.

We have researched case law and there is a similar case nearly 5 decades old, at the High Court in Arusha, that decided that a Will in similar circumstances as your father’s, is valid even though at the time of the Will being opened and a probate being applied for, the person is not the wife of the testator, and even though the wife had remarried. The Judge had the following to state: “It is true that the wife (beneficiary) has remarried, but I cannot see that that can make any difference. Accordingly I am satisfied that the wife is the identical person, who was described by the testator as his wife, as indeed she then was. As the Testator did not alter his Will, and as the divorce did not operate as a voluntary revocation, the wife is entitled, to the testator’s property and to be appointed his sole executrix. By way of strengthening the position, counsel adduced the consents of the two children of the marriage to the wife being granted probate.”

We would expect that your father’s Will is still valid, and that your mum (former wife) is entitled to the house that she is currently living in. All said and done, we strongly recommend that your lawyer considers all the facts around the issue, as no two cases are always alike.

Want to become a citizen again

I married a foreigner and moved to his country where I became a citizen there. After ten years of marriage, we divorced and I have now come back to Tanzania, and want to become a citizen of Tanzania. Am I allowed to revert to my original citizenship? My consultants say that because I dumped my previous citizenship, I now cannot become a Tanzanian citizen. What should I do?
WP, Dar

Section 13 of the Citizenship Act provides for exactly such a scenario and states the following:

13.-(1) If any citizen of the United Republic of full age and capacity makes a declaration in the prescribed manner renouncing his citizenship of the United Republic, the Minister may cause the declaration to be registered and upon that registration the person in question shall cease to be a citizen of the United Republic. (2) The Minister may refuse to register any declaration referred to in subsection (1) if it is made during any war in which the United Republic may be engaged or if, in his opinion, it is in any other way contrary to public policy; but notwithstanding the refusal of the Minister, the person concerned shall cease to be a citizen of the United Republic at the time prescribed under this Act.

(3) Notwithstanding anything in this Act or any other written law to the contrary, any woman who is a citizen by birth of the United Republic who renounces her citizenship of the United Republic upon getting married to a citizen of another country may, where the marriage breaks down, revert to her citizenship by birth of the United Republic on such conditions as the minister may, by regulations published in the Gazette impose.

Section 12(3) allows you to once again become a citizen of Tanzania. Issues of dumping or otherwise are not an issue and unless you have withheld information from us, your consultants are misguiding you.

Translation mistake in the law

If there is a law that is drafted in Kiswahili and translated in English, and there is a translation error, then what law shall prevail? I have noted a number of mistakes in translation of laws, policies and the like and wish to understand what would happen.
IO, Dar

Section 84 of the Interpretation of Laws Act provides in section 84 as follows: (1) The language of the laws of Tanzania shall be English or Kiswahili or both. (2) Where any written law is translated from one language into another and published in both languages, then in the case of conflict or doubt as to the meaning of any word or expression, the version of the language in which the law was enacted shall take precedence. (3) Where any written law is enacted in both languages and there occurs a conflict or doubt as to the meaning of any word or expression, the English version shall take precedence.

Therefore if a law was initially drafted in Kiswahili (there are sadly very few, if any, that are drafted in Kiswahili) then, in case of translation error, the Kiswahili version will prevail over the English version. However if a law is drafted and enacted in both English and Kiswahili (no translation), then the English version will prevail.