careen suda winston mogoile another vs philemon msegu 2023 tzhc 21961 13 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE)

AT TEMEKE PROBATE AND ADMINISTRATION CAUSE NO. 120 OF 2022 CAREEN SUDA WINSTON MOGOILE..........................................1st APPLICANT FRANK WINSTON MOGOILE.......................................................2nd APPLICANT

VERSUS PHILEMON NAHORI MSEGU......................................................... RESPONDENT

RULING 25th August & 13th October 2023 Rwizile, J. This is an application for revocation. The applicants are asking this court to revoke and annul the grant issued to the executor of the Will of the late Winston Ndalije Magoile granted by this court on 2nd September 2022 to Philemon Nahori Msegu. The application is filed under section 49(l)(a) and (b) of the Probate and Administration of Estates Act and Rule 29 (1) (2) and (3) of the Probate Rules. The reasons for revocation have been stated in the affidavit supporting this application. It should be noted that the respondent upon appointment filed an inventory as directed by the court, since then to date, nothing has been done because of this application. According to the affidavit supporting this application, the applicants are the deceased's children also named in the Will. i At the hearing of this application before this court, Mr. Denice Tumaini learned counsel for the applicants, and submitted that the grant should be revoked for being obtained fraudulently and by concealing vital information in respect of the grant. He said, the Will was not written by the deceased and the respondent was aware of it. It was argued further that the beneficiaries were not personally informed and so the respondent should be revoked. He asked this court to refer to the case of Mariam John Mallya and 3 Others vs. Marian John Mallya {executrix

of the estate of John Kache! Mallya), Misc. Application No. 7 of 2021 and Adul Yasmine Haji vs. Antony Amini Haji, Probate and Administration Cause No. 33 of 2021 In reply, the respondent who was represented by Mr. Japhet Mmuru learned counsel argued that the application was baseless. He said, there is no information that was concealed by the respondent. It was his view that general citation was made by publication in accordance with the law. He added, that the family meeting informed him of the Will and that the respondent was appointed to execute it. The learned counsel said further that all the properties of the deceased were stated in the Will and disposed of by the Will. He asked this court to refer to the case of Mark Alexander Gaetje and 2 Others vs Brigitte Gaetje Defloor, Civil Revision No. 3 of 2022 It is clear to me that this application for revocation has main reasons advanced in the affidavit supporting it. First, the grant was obtained fraudulently and by concealing important information about the grant. 2 Second, the Will left out some of the properties not entirely bequeathed. Third, it bequeathed nontransferable properties which is against the law. In the application for revocation, in cases of testacy as in this case, for the application to be successful, I think, the applicant has to not only attack the Will but has to show that the grant was perhaps

obtained without following the law. The applicants have said, the Will was not made by the testator. In this, there is no evidence showing the same was forged. I think therefore this point is baseless. Dealing with the first point, if the grant was obtained fraudulently. As well, evidence of fraud, ought to come from the applicant. It was argued that the executor did not inform the applicants about the Will. It is noted that on 1st September 2021 after the burial of the deceased. In the presence of the members of the family, the Will was read and it was not disputed that the respondent was named the executor. Under paragraph 6 of their affidavit, it is clearly stated that a meeting was again done on 9th July 2021 but acknowledges the meeting by the same members on 1st September 2021. It seems to me as a contradiction, because a meeting held on 1st September 2021 cannot be referred to as a meeting held on 9th July the same year. I take it that there is I think slip of the pen. But what is apparent in the record is that the will was known to the parties and it had appointed the respondent the executor. In all tetrads, I do not see any evidence to prove that a grant was obtained by any unlawful means. 3 The other two points stated by the applicants are directly attacking the Will. In my view, challenging a Will is not always a simple task. Evidence has to be brought to prove that

the same is below the minimum standards obtained when preparing the Will. For instance, to prove that the Will was against the law for bequeathing properties that do not belong to the deceased, or that it was not witnessed by the person with the capacity to do so, or that the testator at the time of making it had no capacity to do so, or that it disinherited the lawful heir without reasons. In this case, none of the above has been proved. The 2nd respondent and one Foibe have been disinherited for reasons stated in the Will. It would take an unreasonable person to believe that the way the Will is made was not made by the testator. I have no doubt in my mind that the applicants have no sufficient reasons for this court to revoke the grant. The application in my view is hopeless and should be dismissed as I hereby do. I hesitate to make an order for costs. 13.10.2023 4