Q&A – 10 February 2014
Will says no to marriage
I was very close to my father who died and left me a substantial asset which are a number of properties. In the Will he has mentioned that I should not marry as during his lifetime he had agreed with me that I should become a nun. I spoke to a few friends of mine who told me that under our laws I cannot now get married and even if I do my marriage certificate is void. Is that true? I feel threatened that if I do get married the soul of the deceased will not rest in peace.
That is absolutely false. Getting married is a universal right and neither a Will nor any other document can stop you from proceeding with marriage. It does not matter what your father wants when it comes to such personal rights- the final decision is yours. Under the law you can hence proceed as you deem fit. Your lawyers can guide you further.
Unfortunately as lawyers we are unable to comment or respond on the soul of the deceased as it is not a legal question. It is a question that can be addressed by your religious leaders.
Confused between shareholders and directors
I am a director in a company but not a shareholder. However the decisions I take in the quarterly board meeting sound like I’m the owner. I’m also unable to understand what my role is if I am not a shareholder. Is there no law that a director must be a shareholder? Please guide.
As a director you do not own the company- you are merely part of the governance structure of the company to whom the management reports. You are neither a manager of the company nor a shareholder, rather the structure in between. Hence you attend Board meetings not shareholders meetings.
The board directors like yourselves are appointed by the shareholders and represent the interests of the shareholders in board meetings. As a director, unless there are special provisions, you are generally not entitled to dividends or any other shareholder benefits although you might be getting allowances to be a director.
It is crucial that as a director you understand what your role is, and are able to demarcate between your role and the role of your management and shareholders. As a director you do not run the company but appoint management to take charge of operations. Hence a director cannot directly get involved in operational matters pertaining to a company.
One thing that you must insist the company to provide is a director’s liability insurance so that you are covered in case of a decision by directors that cause losses or other damages to anyone. For example many of our laws provide that directors can be charged in Court for the actions or inactions of the Company. In such a circumstance your legal fees, deposit for bail and the like must be covered by insurance, otherwise a director may not be able to satisfy bail conditions and end up going to remand prison. A number of times directors are unaware of the serious responsibilities that come with the role of a director.
Hence insist on proper insurance for your role as a director. Our experience in Tanzania is that most companies and directors do not have, or have not heard of director’s liability insurance.
Generally, unless your company constitution provides otherwise, there is no law that specifies that a director must be a shareholder. Just because you are taking such large decisions doesn’t mean that you should automatically become a shareholder. Your lawyers can guide you further.
Islamic versus other Will
What are the rules of making a Will and what if I am a Muslim and don’t want Islamic laws to be
applicable in distribution of my estate when I expire. Is that possible? What can I do?
Islamic laws don’t have a specific format on how a Will can be drawn. However in a Will the following must be there: name of person making the Will (testator), names of the beneficiaries, name of an executor including an alternate executor and the types of assets and how you intend to distribute them. If the testator can read and write, then the Will should be witnessed by not less than two persons (it is recommended that one be related to the testator and another unrelated). However, if the testator is illiterate, then not less than four persons should witness the Will, two being related to the testator and two not related to the testator.
Furthermore note that the testator and the witnesses to the Will should all be in the presence of each other and should witness each of them sign at the same time. Upon death, the law applicable in distribution of the estate of the deceased can either be religious law or customary law depending on the life of the deceased.
For Islamic estates, it is clear that the testator can only distribute one third of his estate, the rest of the estate shall be distributed as stipulated in the Quran. The Probate and Administration Act and the related regulations do not provide on whether a Muslim can opt not to have his estate distributed in accordance to Islamic laws. However there is a judgment of the Court which provides that a Muslim testator can clearly indicate in his Will that he doesn’t wish for his estate to be distributed in accordance to Islamic law.
A Will is one of the most important documents, yet underrated, you will make in your lifetime. One day it is your Will that will speak not your mouth. Please consult your Attorney for further details.