image0017

»

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY

AT MOROGORO PROBATE AND ADMINISTRATION CAUSE NO. 14229 OF 2024

IN THE MATTER OF THE ESTATE OF THE LATE PIUS JEREMIAH MBWILO (THE DECEASED)

AND

IN THE MATTER OF THE APPLICATION FOR LETTERS OF ADMINISTRATION BY JAMES PIUS MBWILO(THE PETITIONER)

RULING 09/08/2024 & 22/08/2024 KINYAKA,J.: This ruling is in respect of the issue raised suo motto by this Court regarding the validity of the will annexed to the present petition. The brief facts of the petition are that on 17^^ June 2024, James Pius Mbwilo, the petitioner herein lodged the instant application petitioning for the grant of the letters of administration of the estate of his late father, Pius Jeremiah Mbwilo who died at Morogoro on 10^^ February 2024. The said petition was accompanied by among other things, the deceased's will dated 12"^ August 2021, hereinafter the "will". On 9^^ August, 2024 when the matter was called on for hearing of the petition, upon a closer scrutiny of both the applicant's petition and the said will, it came into the attention of the Court that some of the deceased's biological children were not listed in the will including, Ibrahim Pius Mbwilo, the deceased's son; Gabrieila Pius Mbwilo and Gracious Pius Mbwilo, the deceased's daughters, hereinafter referred to as the "three children". Having so observed, this Court invited the petitioner and the interested parties to the petition who were in attendance to address the Court on the propriety of the said will. As the issue raised was a matter of law, the heirs being lay persons were brief in their submissions. The first to address the Court was the petitioner who admitted that the three

children who have not been included in the will are his late father's children. However, he was of the opinion that the will is valid as when the same was made on 12^ August 2021, the three children were not born. According to him, although their late father did not write another will or amend the existing will after the birth of the three children, it is likely that he had intended to do so but he could not upon his unexpected death on 10^^ February 2024. The petitioner's views were supported by Natalia Paul Mosha, the deceased's wife. Happiness Pius Mbwilo, the deceased daughter, and Levina Lazaro Palike, a sister in law to the deceased who added further that it is possible for the three children who were not named in the will to be included in other properties that were already given to others or the ones which their father did not distribute in the will. On his part, David Pius Mbwilo, the deceased son found the will to be invalid and thus prayed for consequential orders so that they can move forward. On the other hand, Stella Pius Mbwilo, Monica Pius Mbwilo, Regina Pius Mbwilo, Rachel Pius Mbwilo, Happiness Pius Mbwilo, Doris Pius Mbwilo, daughters of the deceased and Pill Thabit and Zaika Amir, deceased's wives had nothing substantive to add, and instead they left the matter to the Court to decide. I have carefully examined the arguments from the respective beneficiaries,

the petition, as well as the deceased's last will accompanying the petition. In the instant matter, it is clear that both the petitioner and the other beneficiaries of the estate of the late Mbwilo do not contest that the deceased's will annexed to the petition left out some of the deceased's children. They are also at one that there is a huge possibility that the omission was unintentionally, as the children were born after the deceased's execution of the will. That said, what is before me for consideration and deliberation, is whether the said will can stand both the validity and enforceability test. Understandably, in petitions of this nature, the validity of a deceased will cannot be overemphasized. As such, it is the duty of the court hearing the petition to make a thorough ascertainment of the same and thereafter grant the petition. See the case of Allen Rutatekururwa Rugazia v. Parfectus Ruteganya, Civil Appeal No. 530 of 2022 [2024] TZCA 530 (8 July 2024), in which the Court of Appeal underlined: "In a petition for probate, the court is concerned with the vaiidity of the will as annexed to the petition. The questions which wiii come up are whether or not the wiii has been properly executed; whether or not the testator had the capacity to make the wiii; in the case where the testator has disabilities like blindness, deafness or iiiiteracy, whether or not the contents of

the wiii were made knowledgeable to him by reading over, etc and he had granted his approval; whether there was undue influence or not; whether there was forgery and fraud or not; and whether the wiii has been revoked or not. If the wiii passes aii the tests enumerated above it is taken to be proved, and the court grants the executor the power to administer the wiii." In the present matter, the validity of deceased's will is in question for not including other heirs of the deceased. Undoubtedly, it cannot be said that at the time the deceased was making the will, the same was invalid on the ground of exclusion of some heirs as the three children were not born at the time. It means the will was valid in the eyes of the law at the time of its making and execution by the testator, the late Plus Jeremiah Mbwilo. However, what has exercised my mind is what was intention of the deceased upon the birth of his children, Ibrahim Pius Mbwilo, and Gabriella Pius Mbwilo and Gracious Pius Mbwilo? That is whether the deceased truly intended to inherit his three children some of his assets which he owned either before or after the birth of the three children, and before his demise. From the available records, the deceased's last will was made on 12^^ August 2021. Nearly three years later, on 10^ February, 2024 the deceased demised. Under the circumstances, can it be said that the deceased's

inaction to amend the will or make a new will by revoking the then existing will so as to include the three children was intentionally or an oversight? Admittedly, in the present situation, not only the deceased's last will omitted to include the provision for the three children, but also no evidence has been availed to Court to establish that the deceased intended to inherit or disinherit them. In the circumstance, the Court is 4. unable to determine the deceased's intentions in respect of the three children. The deceased's inaction leaves a lot to be desired. I say so because, it is now settled that a testator wishing to exclude an heir must explicitly declare so and state the grounds for exclusion in the will. Rules 30 and 34 of Local Customary Law (Declaration)(No.4) Order, Government Notice No. 436 of 1963 hereinafter the "Order" provides that: "(30) Mwenye kutoa wosia anao uwezo kubadilisha mpango wa urithi usio na wosia, lakini hawezi kumnyima mn'thi au kuwanyima warithi kab'tsa pasipo sababu nzito/' [Emphasis added]. "(34) Mtu atakaye kumnyima mrithi urithi wake iazima aseme wazi katika wosia wake na aeieze sababu zake." All the same, the Order has provided for reasons considered reasonable to enable a testator to deny his heir's share of inheritance under Rule 31 of the Order. The same reads: "(31)Sababu zinazohesabiwa ni nzito za kuwezesha mwenye kutoa wosia kumnyima

mrithi urithi wake ni hizi zifuatazo: (i) Ikiwa mrithi amezini na mke wa mwenye kutoa wosia; 6 (ii) Ikiwa mrithi amejaribu kumuua, amemshambuHa au amemdhuru vibaya mwenye kutoa au mama mzazi wake (yaani, wa mrithi); (Hi) Ikiwa mrithi, biia sababu ya haki, hakumtunza mwenye kutoa wosia katika shida ya njaa au ya ugonjwa." From the wording of the above provision, it is clear to me that it is a legal requirement that an ascertainment should be made as to whether the reasons adduced by the deceased person are sound and reasonable. In the other words, in the absence of the grounds justifying the exclusion, it is difficult for the Court to make a finding that the exclusion of the three children was legally justified. That said, in the circumstances like the present one where there are no grounds that were presented for the deceased's omission to amend the said will and include the children born after its making, the deceased's will cannot stand the test of validity. Nonetheless, upon my scanning of the clan meeting of the deceased's family attached to the proceedings, nothing was stated regarding the fate of the three children. Seemingly, no one from the clan had a clue as to the information about the inheritance of the three children either from the deceased or through the family members. In that regard, I find the contention by the petitioner that the deceased might have planned

to inherit the three children, though impressive, but unsubstantiated. I have also considered the petitioner's argument that the three children will be given the properties of the deceased that were not distributed by the deceased to any of the heirs. When probed by the Court on the properties, the petitioner informed the Court that there is an empty plot in Mbeya and another in Morogoro which have not been t found though the family is in the process of ascertaining its existence and location. I do not find the proposed distribution to the three children justified considering the nature, distance and the uncertainties as to existence of the alleged plots. Not only that but also, I have noted that the three children have not been listed anywhere in the petition as among the legal beneficiaries of the deceased. It follows that the substance of the contention that they will be bequeathed with the properties that were not included in the will, is doubtful and questionable. In view of the above findings, it is without sane of doubt that the will attached to the petition is invalid and unenforceable. As such, I am fortified that this is a fit case where justice demands that the rules of intestacy come into play to rescue the current situation as provided for under Rule 38 of the Order which states: "Kama ataonekana mtu amenyimwa urithi katika wosia pasipokuwa na sababu ya haki, wosia

unavunjwa na urithi utagawanywa kufuata mpango wa urithi usio wa wosia'' Upon my invalidation of the will, I declare that the late Pius Jeremiah Mbwilo died intestate. As such, the rules and procedure governing the grant of letters of administration ought to be adhered by any interested person or person(s) appointed by the family members to administer the estate of the deceased. [See the case of Mark Alexander Gaetje and 20thersv. BrigitteGaetje Defloor, Civil Revision No. 3of 2011 [2011] TZCA 229(15 September 2011)]. Conclusively, the present petition is found incompetent for want of an enforceable will. As a result, the same is struck out. It is so ordered. DATED at MOROGORO this 22"^ day of August 2024. H. A. KINY^KA

JUDGE 22/08/2024 • « Court: Ruling is delivered in the presence of petitioner and beneficiaries of the estates, and Justa Tibendelana RMA. Right of appeal fully explained. Of -9 Cy r) uj S.P. Kinawa X vv

DEPUTY REGISTRAR Si 22/0B/2024 10