Simultaneous death of testator and beneficiary 

My Wife and her father recently passed away in a tragic accident. We are not sure as to who died first. My father in law left a Will bequeathing most of his properties (estate) to his daughter (my wife). On the other hand, my wife left a Will stating that all her estate should be evenly distributed amongst her beloved daughters. Our family is now perplexed on whether my wife’s share from her father’s estate forms part of her estate. Kindly advise us.

JD, Dar es Salaam

Please accept our sincere condolences for the loss of your wife and her father. In our experience, this is one of the difficult legal issues. The difficulty lies on the fact that Tanzanian law does not provide for such situation. However, it is addressed under what is known as the commorientes rule, which applies where there are simultaneous deaths of two people in circumstances where it is not possible to determine who died first. It is also worth noting that different jurisdictions deal with this differently. Some jurisdiction like England and Wales apply a strict presumption under the Rule (often that the younger person is taken to have survived the older), while others like Scotland require clear proof of survivorship on a balance of probabilities. As indicated above, in Tanzania, this is not addressed by our laws. However, where our laws are silent, the Courts are generally guided by common law principles, depending on the circumstances of each case.

In your case, if it can be shown that your wife survived her father, even where it is proved that she died after a second, then her inheritance under her father’s Will will have vested in her and, therefore, form part of her estate to be distributed to her heirs (daughters) in accordance with her own Will. Should it be difficult to prove that she survived her father, her father’s estate does not become part of her estate and, therefore, cannot automatically pass to her children. Instead, it would be dealt with under any alternative provisions under her father’s will, or under intestacy rules, if no such provisions exist. The key point is that a person can only pass to another what they have legally acquired before death, and Wills are ambulatory in nature, meaning they only take effect upon death and can be changed during a person’s lifetime. Given the circumstances of the matter, we advise you to approach your lawyer for further guidance.