Q&A – 16 May 2011

Probate issued to one executor

I was one of the three persons appointed to be an executor under a friend’s Will. After his death, I was very busy with my business and failed to apply for the probate. A year and half later and without my consent, one of the named executors went ahead and filed a probate in court and obtained the probate alone. He then proceeded to distribute the estate of the deceased. Is this legal?
MM, Bukoba

We are unsure why you are complaining and asking about the legality of this probate when you have ignored your duties as an executor. You have also not mentioned if there are any issues with the way the estate is being or was distributed. It doesn’t seem so otherwise we presume you would have specifically mentioned this. In any case, we answer your question but hope that you do not have any malicious intent in delaying matters.

Under the law of probate where there are several executors named in a Will, one of the said executors can alone file for probate without the others unless the wording of the Will is such that all executors must execute together. Hence you need to look at the wording of the Will and if you were to execute it together, you may challenge issuance of the probate.

However if any one of the executors could execute the Will, then the other executor is acting within his powers. Legally you can also apply for a probate, even at this stage, if the estate has not yet been completely distributed and the wording of the Will is such that anyone can be an executor. Both of you will then become executors and can proceed distributing the estate jointly.

Thought I was married

I came to find out that a close friend of mine is actually a witchdoctor. Whilst my boyfriend was on assignment out of the country, this friend bewitched me to believe that I was his wife. I ended up living with him for the last eight months only to realize recently what I was doing. What remedy do I have?
PL, Bagamoyo

It is very difficult for us to understand how this happened and for what reasons. You seem to be indicating that there was some kind of spell on you that has now come to an end and that you have now realized what you have done. We will answer this question assuming that is indeed the case although we find it hard to believe. We also answer this question without knowledge as to other facts that you might have withheld from us. For example how long have you know this friend of yours, how did you meet, if there was any relation before and whether your boyfriend knew about this. There might be other material facts that you have not disclosed to us that may make a difference as your question has elements of fraud, deception and rape.

We now address your question. The statute that deals with criminal law in Tanzania is the penal code. S163 of the Penal Code comes to your direct rescue. This section states that any person who willfully and by fraud cases a woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief is guilty of an offence and liable to imprisonment for ten years.

With the above in mind, you may want to report this to the police. Proving your complaint may be very difficult but you know the facts better and can decide. We also suggest that you seek the services of a marriage counselor to guide you on this.

Not paid, debtor dead

I lent money to a person based on which a contract for repayment was drawn. For many months I lost touch with him and only recently found out that he had expired and all his assets were distributed to beneficiaries. Do I have a recourse?
LL, Moshi

The Probate and administration of estates act requires that before the appointed administrator distributes assets of the deceased, he should give notice to the public so that all creditors are notified. In your case since they are already distributed, you are allowed under the law to follow up your debt from the hands of any of the beneficiaries or all of the beneficiaries.

They are all legally required to repay the said loan since they are the ones who have benefitted from the estate of the deceased. Before rushing to Court you may want to approach them- should this not work you can file a recovery case against any of the beneficiaries or all of the beneficiaries.

Murder whilst drunk

In 2009 my nephew was enjoying his drink with a friend in Sinza. Whilst both were quite drunk, his friend started making fun of my nephew’s girlfriend who was not present and in retaliation my nephew took a beer bottle and threw it at his friend. There was profuse bleeding and the injured was rushed to a hospital nearby where he died the next day. My nephew was arrested by the police and has not been released yet. He has been charged with murder although there was no intention to kill the deceased. It was merely a mistake. What should we do?
NM, Tarime

Murder is killing of a human being with malice aforethought, which is the state of mind required for a person to be guilty of murder and such death must occur within one year and a day.

It seems that malice aforethought, a key ingredient in murder, was absent in this case as the two were enjoying drinks together and the events that led to death were likely caused by intoxication and provocation, which can reduce the charge of murder to that of manslaughter.

Yes the actions resulted in death but at the time when your nephew threw the bottle, we believe that he did not intend to kill the deceased.

It was merely a reaction to the provocative comments made by the deceased. You may argue that one does not normally die when a bottle is thrown at you- the law looks at death very strictly, and correctly so, in that the thin skull rule applies wherein you take your victim as he or she was and cannot come back and argue that he was weak and abnormal.

Even if your nephew succeeds in defending himself against murder, it is very likely that he will be convicted of manslaughter.