in the matter of the estate of the late jovin alyoce lyimo and in the matter of application for probate with will annexed catherine jovin lyimo and in the matter of ca

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM -SUB REGISTRY

AT PAR ES SALAAM PROBATE AND ADMINISTRATION CAUSE NO. 01 OF 2021

IN THE MATTER OF THE ESTATE OF THE LATE JOVIN ALOYCE LYIMO ' I

AND

IN THE MATTER OF APPLICATION FOR PROBATE WITH WILL ANNEXED BY CATHERINE JOVIN LYIMO..................................... PETITIONER

VERSUS LILIAN JOVIN LYIMO........................................................................ CAVEATOR

JUDGEMENT 19th July & 31**1 August 2023 Rwizile, J. The deceased Jovin Aloyce Lyimo, had two marriages in his life time. The first marriage was until 1992 when Imelda Tarimo died. Before her death, Imelda had mothered with him five children, namely Lilian-the caveator, Lucia, Hysintha, and two others who are now deceased. When he got into another marriage in 1995, with Catherine- the petitioner (second marriage), he furthered two children named Consolatha and Aloyce. There is also evidence that the deceased left other children born out of the wedlock to include George, Thomas, Zamda and Winfrida. In this probate matter, this court is asked by the caveator to declare that the Will annexed to the petition is invalid. Allegedly, Jovin Aloyce Lyimo i died on 6th February 2021. He was buried a few days thereafter at his home in Kilema of Kilimanjaro Region. Following his burial, on 12th February 2021, at the family meeting, Consolatha Jdvin Lyimo, daughter of the deceased revealed to the gathered mourners, presence of the Will in her possession. The same was read and had appointed the petitioner to execute it. This did not please the rest of the children and some elders. Upon examination of the Will, it was found that the same had fake deceased signatures in some pages and for having left three children out and bequeathed properties that were acquired during pendency of the first

marriage to the petitioner, when this petition was filed, Lilian filed the caveat to protest injustices she thinks are caused by the Will. As it is usually the case, when the matter turned contentious, this court was invited to determine three main points; i. Whether there is a valid Will left by the deceased ii. Whether the will contains properties not subject of the deceased estate iii. Whether the petitioner is to be trusted for appointment to execute the Will iv. To what reliefs are the parties entitled to. When asked to prove her case, the petitioner who went unrepresented testified and called one witness, her Daughter COnsolatha Jovin Lyimo (Pw2). In her evidence Catharine Jovin Lyimo (Pwl) testified that the Will is valid because it was prepared by the deceased and handled to Pw2. She said the same was revealed by her, during the family meeting and read it to the rest of the beneficiaries. She further testified that; the Will does not bequeath any property to Pw2. She said, the last Will only identified the children she knows and were introduced to her, by her husband. She said, she does not know other children as alleged by the caveator. According to her, all the properties named in the Will belong to the deceased. She said, she will, if appointed, execute the Will as it is. She asked this court to dismiss the caveat and appoint her as the executrix of the estate. Pw2,

told the court that in 2020, her father-the deceased came home from office with an envelope, she was asked to keep the same in a suitcase in his room. According to her evidence, she was told that in case of anything, the envelope should be taken to the burial. She was warned not to talk to anybody about it. Her evidence was clear that, she kept that by her heart 3 until when her father died. She took the Will and presented it after the burial ceremony. It was presented as it is, she testified. On part of the caveator Lilian Jovin Lyimo (Dwl), who was represented by Mr. Armando Swenya learned advocate, also testified and tendered one witness, Eligi Alyoce Lachuo (Dw2). Dwl was plain in her evidence that the Will brought some misperceptions among them during the family meeting after the burial of their deceased father. According to her, the source of all this is how the Will was kept by one of the beneficiaries. She said, the Will had forged signatures. To be precise, she pointed that forged signatures are from page 1-4, while on page 5-6 are proper signatures. To substantiate her point, she said page 2 has a different form of words than it is in other pages suggesting that some pages were replaced. Dwl, went on stating that, she knows persons named in the Will but there are other children left out. She named as Zamda, Winfrida and Precious. She said, the same are known by

their stepmother as children that belong to their family. According to her, before her mother died in October 1992 and before the marriage of their stepmother, they had acquired landed properties at Moshi such as the shamba and other properties which were included in the estate of the deceased and bequeathed to the petitioner. Her evidence was supported by Dw2. It should be noted that Dw2 is brother to the deceased, he materially supports the caveat on the same grounds. After a hearing, parties were allowed to file closing submissions which was done as directed. The petitioner submitted in her final submission that the caveator alleged that the signature in the Will was forged. However, she said, there was no evidence to prove the allegation. According to her, the report that was brought provided the difference in the length of the letter but did not prove accuracy in the creation of signatures. It was her submission further; the evidence on forged signature was not accurate. On custody of the Will, she argued, the same was hidden by the deceased at the place only known by Consolata. She argued, Consolata is not the beneficiary because, she has not been given anything in the Will. Submitting on properties distributed to her, but not owned by the deceased, she argued that, they form the estate of the deceased even though they were acquired with the first wife. The petitioner

made reference to the case of Leticia Mtani Ihonde v Adventina Masonyi (Administratrix of Estate of the Late Buhacha Bartazari Kichinda) Civil Appeal No. 521 of 2021 where it was held that; 5 where the husband has died, the surviving spouse cannot seek distribution of matrimonial assets in a matrimonial cause, any claim must be sought in a Probate and Administration Cause. Lastly, the petitioner submitted that the deceased had long distributed his assets to his heirs between 2014 and 2017, and the caveator as a beneficiary was given 1 house at Ubungo Kibangu, and a 14-acre farm at Dundani-Mkuranga. It was the view of the petitioner that the Will is valid in terms of section 2 of Probate and Administration of Estate Act, to the effect that, the wishes and desires of the deceased are in the Will and it Will be meaningless and without justification to ignore those wishes. On part of the caveator, the deceased Will included properties left by the first wife as her estate was not distributed to the respective heirs but remained in the hands of the deceased. She said the properties include; Plot No. 681 and 683, Block G Tegeta, the property of Mkuranga and Moshi which were acquired prior the marriage as the deceased and Pwl got married in 1995. It was argued further that, the first wife was married in 1977 in terms of exhibit D-l Second, it was argued that the purported Will is

invalid. She submitted it is because the appended signatures are different from what the deceased used to sign. She cited in particular pages 1-4 which constitute the distribution of the estate referred to in paragraph 12 of the affidavit and the report of Forensic Bureau. According to her submission, Rule 90 of the Probate Rules demand inquiry into the same. Third, it was argued, the Will was under the custody of one of the beneficiaries, contrary to the practice and procedure as testified by Dwl. It was stated that the Will was brought by the beneficiary to the clan meeting. Fourth, it was argued that the Will did not include all properties of the deceased, as it left the properties at Bunju-Dar es Salaam and Toyota Ipsum. The Will, it was added, excluded other heirs such as Zamda, Winfrida, and Precious without assigning any reasons for doing so. This act, it was argued, denies them the right to inherit from their father's estate. This, in the view of the caveator concluded that the Will was tempered with as the forensic report had shown. Fifth, it was submitted further that, the Will distributed the properties of the first union to other heirs of the second union which do not form part of the estate contrary to the practice and procedures as it was testified by Dw2. Some properties, it submitted, acquired by the first wife were bequeathed to the second wife. Furthermore,

the caveator stated that the conditions to grant letters of administration or to revoke the same is 7 provided by section 49(1) and (2) of the Probate and Administration of Estate Act, [Cap 352, R.E 2002]. It was argued J that based on the law, the Will is defective and has many irregularities that disqualify it and should not be acted upon. It was further argued, that Pwl disqualified herself from applying for the letters of administration of the estate of the deceased by making false suggestions in order to be appointed an executrix. She said, the Will contradicts section 163(a) (b) and (c) of the Probate and Administration of Estate Act. This court was therefore asked to declare the Will invalid. After going through the submissions, it is clear to me that the first issue is pegged on the validity of the Will. It has been stated by the caveator that the Will is invalid for being forged. I have gone through the evidence by the caveator, I am firm, there is no proof to show the forgeries stated. Dwl went further and stated that the signatures of her father were forged on pages 1 to 4. What she said, is for all intents and purposes her own opinion. It is not backed by any evidence. It should be noted with concern that when in civil matters like this one, when issues of forgery are raised, the evidence to prove so must be as if proving a criminal charge. It should be proved

beyond reasonable doubt. I hesitate to hold that there is proof of forgery. Forensic evidence referred in the submission of the caveator was not tendered in evidence. To refer the same in the submission is a total misplacement and self-deception on part of the caveator. But the fact that there is no proof of forgery, it does not in itself validate the Will. It is settled that in order for a Will to be legally enforceable, it has to be valid, and its validity in turn derives from the capacity of the testator and the circumstances attending its making. There is no allegation that the testator was ill or his mental capacity was wanting at the time the alleged Will was executed. But the circumstances surrounding its making, witnessing and keeping are indeed wanting. There is evidence that Pw2 who is the beneficiary kept the Will upon being given the same by his father. As to whether that is true and indeed presents what happened, remains in the knowledge of her mother. She further says, that upon getting it, she kept it in the room of her father. When death occurred, she took it from there and went to a funeral and disclosed it to others. I do not think that is possible. Having a Will, keeping it in the room for days, and yet did not murmur anything to her mother. There is no evidence as well that it was kept at the place her mother could not access. I think, it was the duty of Pw2

and Pwl to prove that the Will, 9 not only made by the testator, but also it was indeed kept safely aS they are trying to intimate. In the case of Mark Alexander Gaete and @ Others v Grigitte Gaetje Defloor, Civil Revision No. 03 of 2007, it was stated that: - "... in the petition for probate, the court is concerned with the validity of the "WILL " as annexed to the petition. The question which will come up is whether or not the "WILL "has been property executed..." As held therefore, for a will to be considered valid, among other things, the court has to be sure that it was properly executed. A Will therefore must be in writing, signed by the testator in the presence of at least two witnesses, who must each sign in the presence of the testator. It must be attested by a commissioner for oaths. This is an important aspect because the Commissioner for Oath attests the document on his capacity as a Commissioner for Oath conferred under section 2 of the Notaries Public and Commissioners for Oaths Act, {Cap. 12 R.E. 2019]. However, the attesting officer to whom the document is executed before him also witnesses the signing. He is another person apart from the relative who witnesses the deceased signing the Will. The Commissioner plays two io roles, a witness and attesting officer. He is in a position to testify that he witnessed the signing of the said Will. In this case, the Will

has been admitted as DI. My examination of the same shows, it was not witnessed by any persons. But it was attested by two advocates who also stamped upon doing so. They are Octavian William Temu and Jethro Turyamwesiga. Despite attesting it, the same did not come to testify. In this sense therefore, the presence of the Will has been good to two people, the petitioner and her daughter. This, in my view, is illegal. Therefore, this court holds this will is invalid and therefore incapable of taking effect. Invalidating the Will definitely disqualifies the petitioner from appoint, since there is no will to execute. The third issue is therefore determined in this manner. To say the least, there are other two issues stated by the caveator that is involving properties acquired by the deceased with their mother. Without wasting time, this argument is baseless and has no substance. What forms the estate of the deceased are properties in the hands of the deceased before his death. It does not matter when they were acquired because that can be done as rightly submitted by the petitioner in matrimonial dispute which is not the case here, his therefore sufficiently answer the second issue. 11 Lastly, the caveator, asked this court to apply section 49 of the Probate and Administration of Estates Act (PAEA). In my view, that is also a misconception on party of the caveator. Section 49 of the

act applies when the court is asked to revoke the appointment. At this stage, there is no appointed made and therefore the section does not apply. As to what reliefs are the parties entitled, the caveator did not ask for the appointment to administer the estate. The petitioner was petitioning to execute the Will. The same has been held to be invalid and so lost the credentials for appointment. But upon going through the petition itself, is wanting for contravention of section 57(2) of PAEA, because it was not witnessed by the atleast one witness to the Will. Based on such state of affairs. The accumulation of illegalities in the Will and complaints behind its execution and storage coupled with the filing of the petition sufficiently nullifies not only the Will but as well the petition. The petition is therefore struck out. This means, a new petition may be file by following the procedure as in case of intestacy. I make no order as to costs. A.K. RWIZILE

JUDGE 31.08.2023