Q&A – 13 February 2023

Requirements to make a Will

I am a Tanzanian male and Hindu by religion. My present age is 78 and I am intending to make a Will as I am quite unwell. Can you tell me what the key requirements are and whether the Will needs to be registered? Does it matter if I am of a different religion?
PP, Dar

Succession of Non-Christian Asiatic in Tanzania is governed by the Succession (Non-Christian Asiatics) Act, Cap 28 R.E. 2002 (the Act). Section 6(1) of the Act provides that ‘succession to the movable property in Mainland Tanzania of a deceased Non-Christian Asiatic who at the time of death was domiciled in Mainland Tanzania and to the immovable property in Mainland Tanzania of such a Non-Christian Asiatic whether or not domiciled in Tanzania at the death, shall be regulated by the law of the religion professed by that Non-Christian Asiatic at the time of death’.

For the mode of distribution of properties of an intestate Hindu, the governing law is the Hindu Succession Act, 1956 (as amended). The Hindu Succession Act governs the intestate succession among Hindus but also applies to other persons who are Buddhists, Jainas or Sikhs by religion.

A Will is a legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. It is a unilateral document and takes effect after the death of the person making it. Thus, a Hindu who wishes all of or part of his properties not to be distributed according to the dictates of the Hindu Succession Act, can make a Will. Making a Will is highly encouraged and it is one of the most important documents that one will make in their lifetime.

On drafting the Will, generally, it is not necessary that any technical words or terms of art are used in a Will, but only that the wording representing the intentions of the testator should be clear. In making a Will, the testator should abide, at least to the following rules: she/he should be willing to make a Will and be of sound mind at the time of writing the Will; she/he should sign or affix a thumb mark or signature on the Will; the Will must be witnessed by two or more witnesses; the witnesses must see the testator signing or affixing her/his thumb mark to the Will; each of the witnesses should sign the Will in the presence of the testator; and the witnesses should not be among the beneficiaries of the Will. We also recommend having an alternate executor mentioned in the Will in case the first executor cannot act.

A Will doesn’t need to be registered for it to be valid. More importantly, you should choose a trustful executor to keep your Will and distribute your properties according to your wishes upon your death. You can choose individuals to keep your Will but you may also deposit your Will to entities with perpetual existence, like religious organisations or the Registration, Insolvency and Trusteeship Agency (RITA).

Finally, it is important that the executor knows about the existence of the Will and where to find it. Some testators also inform their beneficiaries about the Will’s existence so that there is no confusion at the time of applying for a probate.

It is worth to note that these minimal principles of making a Will apply to all testators irrespective of their religious inclinations.

Driver knocks down pedestrian

I am a Human Resources Manager of a fast growing company in Tanzania. A month ago, our driver while driving his private car knocked down a pedestrian and caused his death. He was charged with the offence of causing death by careless driving and found guilty on his own plea. The driver was then convicted and sentenced to pay a fine which he promptly paid and in addition to the fine his driving licence was cancelled and he was disqualified from obtaining another driving licence for a period of 18 months. Will it be justified to terminate the driver on the grounds of his conviction for a traffic offence? 
AC, Dar

Termination of employment contract on the basis of Court conviction presupposes that the Court found the employee guilty of an offence which also constitutes a disciplinary offence. The offence of causing death by careless driving is not a disciplinary offence or misconduct.

However, if an employee who is a driver is convicted by the Court of a traffic offence and his driving licence is cancelled and is also disqualified from driving obtaining another driving licence for a certain period, such driver can be terminated from employment by the employer on the ground of incapacity and not for misconduct.

Since the driver’s licence was cancelled by the Court and he was also disqualified from obtaining another driving licence, he became incapable of driving legally. Now that the driver can no longer render the driving services for which he was employed, the employer may terminate him on the ground of incapacity. If the Company has a different position to which he can be transferred, the management may do that if the employee is also willing to take the proposed new position. In case you do not have a position to relocate the driver or the driver refuses to relocate, you can continue to terminate the employee on the ground of incapacity.

Substantively, you have fair reason for terminating the driver’s contract of employment as you cannot keep his position vacant for 18 months. Nevertheless, you should make sure that a fair procedure is followed before terminating him. You should serve him with a show cause notice to explain why he should not be terminated for incapacity following the cancellation of his driving licence by the Court. After receiving a response from him, you have to hold a hearing and give him the right to be heard before he is terminated.