The dispute arose from the estate of the late Hamis Tibwa Katore, following competing positions concerning the administration of his estate.
Upon learning of an alleged will left by the deceased, the appellant, Hapendeki Shabani, objected to the appointment of the respondent, Mwanahamisi Tibwa, as administratrix. The respondent had been proposed for appointment through a family meeting.
The Primary Court declared the deceased's will valid. Under the will, the deceased had appointed Chayi Tibwa Katore as executor, with Hamis Masudi designated as an alternative executor in the event that Chayi predeceased the testator. However, despite declaring the will valid, the Primary Court did not grant probate to either of the persons named in it.
On appeal, the first appellate court reversed the Primary Court's decision, declared the will invalid and appointed Mwanahamisi Tibwa as administratrix of the estate.
Aggrieved by that decision, Hapendeki Shabani appealed to the High Court, challenging, among other things, the first appellate court's jurisdiction to appoint the administratrix, its treatment of the validity of the will and its interpretation of Islamic testamentary succession principles.
The principal issues arising from the appeal were:
1. Whether the first appellate court properly exercised its jurisdiction in appointing Mwanahamisi Tibwa as administratrix of the deceased's estate.
2. Whether the will was properly declared invalid, particularly on account of alleged discrepancies in the testator's signatures appearing on its pages without expert evidence establishing forgery.
3. Whether the lower courts properly applied the law governing testamentary succession, including the legal effect of the deceased's expressed wishes concerning the appointment of an executor.
4. Whether the proceedings before the two lower courts were procedurally valid, considering that the existence of a will required the parties to follow the appropriate probate procedure.
The High Court partly allowed the appeal, holding that the proceedings and decisions of both lower courts were vitiated by procedural irregularities and could not stand.
The Court made the following important findings:
a) Existence of a will requires probate proceedings
The Court held that once the Primary Court became aware of the existence of an alleged will, it ought to have guided the parties to follow the appropriate procedure for obtaining probate.
Relying on Magdalena Anthony Sanga v. Theresia Dominicus Tweve, Civil Appeal No. 482 of 2021 [2024] TZCA 1259, and Allen Rutatekururwa Rugazia v. Parfects Ruteganya, Civil Appeal No. 530 of 2022 [2024] TZCA 530, the Court emphasised that probate proceedings are concerned with determining the validity of a will, including its proper execution, the testator's capacity, possible undue influence, forgery, fraud and revocation.
b) A will is presumed valid unless proved otherwise
The Court reiterated the principle established in Magdalena Anthony Sanga v. Theresia Dominicus Tweve that a will is presumed valid unless evidence establishes otherwise.
Consequently, the existence of allegations concerning irregularities in signatures does not, without sufficient proof, automatically invalidate a will.
c) The deceased's wishes must be considered when appointing an administrator
Drawing from Naftary Petro v. Mary Protas [2019] 1 TLR 560 and Seif Marare v. Mwadawa Salum [1985] TLR 253, the Court stressed that the wishes expressed by the deceased regarding the administration of the estate must be considered when appointing an administrator, unless the court finds it inexpedient to give effect to those wishes.
The Court observed that the persons expressly named in the will should have been given the opportunity to petition for probate in accordance with the deceased's stated preference.
d) Proper procedure for challenging a will
The Court explained that Chayi Tibwa Katore, being the first person named as executor, ought to have petitioned for probate. If unavailable, Hamis Masudi, the alternative executor, could have done so.
Thereafter, Mwanahamisi Tibwa or any other interested person would have been entitled to lodge an objection, which the court would determine before deciding whether to grant or reject probate.
e) The court cannot assume the evidential responsibility of parties
The judgment also referred to Anitha Muhidini Mboya v. Joseph Nemes Makoi & Others, Civil Appeal No. 117 of 2021 [2026] TZCA 392, emphasising that a party alleging forgery bears the responsibility of proving that allegation. A court cannot step into the shoes of a party by independently seeking evidence, such as engaging handwriting experts, to establish or disprove an allegation.
The High Court made the following orders:
The appeal was partly allowed.
The proceedings and decisions of both lower courts were quashed and set aside.
The orders made by both lower courts were also set aside.
Any person named in the will, according to the deceased's preference, was directed to petition the Primary Court for a grant of probate.
If nobody was interested in executing the will, the deceased's family or clan was directed to meet and propose a suitable person to petition for letters of administration.
No order as to costs was made.
The decision is significant to Tanzanian succession and probate jurisprudence for the following reasons:
1. Reinforcement of the distinction between probate and letters of administration
The judgment reinforces the procedural distinction between administering an estate under a valid will and administering an intestate estate. Where a will exists, the appropriate starting point is a petition for probate rather than proceeding directly to appoint an administrator through a family recommendation.
2. Protection of testamentary intention
The decision reinforces the principle that courts should respect the deceased's expressed wishes concerning the appointment of an executor. Such wishes are not absolute, since the court may depart from them where it considers doing so inexpedient. Nevertheless, they cannot simply be disregarded in favour of a family-preferred candidate without proper judicial consideration.
3. Reinforcement of the presumption of validity of wills
The judgment strengthens the evidential principle that a will is presumed valid unless successfully challenged. It therefore discourages the invalidation of testamentary instruments based merely on allegations or unsubstantiated suspicions of irregularity.
4. Clarification of the burden of proving forgery
By relying on Anitha Muhidini Mboya v. Joseph Nemes Makoi & Others, the Court reinforces that the burden of establishing forgery rests upon the party alleging it. Courts must remain impartial and cannot assume the responsibility of collecting evidence to prove a party's case.
5. Importance of procedural regularity in succession proceedings
The decision demonstrates that even where courts seek to resolve competing claims over an estate, they must observe the legally prescribed probate procedure. Failure to do so may render the entire proceedings defective and necessitate their being quashed.
6. Guidance on the appropriate remedy where probate proceedings are fundamentally defective
Rather than determining the competing claims to administration on the defective record, the High Court directed the parties back to the proper procedural starting point: a fresh petition for probate by the person named in the will.
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