Athanase v. Mutatina (PC) Civ. App. 154-M-70; 8/9/71; Jonathan Ag. J.

Athanase v. Mutatina (PC) Civ. App. 154-M-70; 8/9/71; Jonathan Ag. J.

The testator emigrated from one Division of Bukoba to another. At his new domicile he made friends with the respondent’s father (Kashaije) who rendered him much help in his ageing days. In appreciation of the friendship testator left his shamba to Kashaije in his will. The shamba was not clan shamba. In the will testator stated that he was disinheriting his heir because he neglected him subsequently testator was looked after by the respondent. He made a second will leaving the shamba to the respondent. This will was thumb printed in the presence of 5 witnesses who signed the document. Later the appellant, the presumptive heir, appeared and ousted the respondent from the house of testator with whom he was staying. Testator subsequently made a third will. In this last will he gave the shamba to the appellant. This will have his thumb print and was witnessed by several witnesses. Judgment was given for the appellant in the primary court on the ground that the second will was not witnessed by relatives in order to effectively disinherit the heir. The district court reversed this decision because the last will was not witnessed by the witnesses who had witnessed the second will and was therefore invalid. The court held that although the second will was not signed by relatives it was, nevertheless, valid because the shamba was not clan land.

            Held: (1) “Most unfortunately [the second will] was not properly executed. Section 19 of the 3^rd Schedule to the Customary Law (Declaration) (No. 4) Order which is, by G. N. 605/63, made applicable tot eh District Council of Bukoba, makes it imperative that a written will should be witnessed by at least two relatives if the testator is illiterate, as in the present case. Here, as regards the 2^nd will, none of the witnesses was a relative of the deceased. It is however, pointed out by both the courts below, that the disputed land was not clan property and by a necessary inference, that indisposing of it by will it was not necessary to get the will witnessed by kinsmen of the deceased. With respect, I would disagree. The section referred to above makes no distinction as to whether or not the property in question is held by the testator through inheritance or by virtue of his being a member of the clan, and to interpolate such a distinction is, in my view, contrary to the intention of the Order.” (2) “Unhappily for the respondent, the failure to get relatives of the deceased to sign the will seriously questions its validity. It purports to disinherit the deceased’s heir presumptive, namely the appellant. If it was so desired, then it was important that the witnesses should be satisfied there were good reasons for passing over those who were entitled to inherit. As Cory & Hartnoll observe in section 37 of their well known work entitled “Customary La of the Haya Tribe”, signatures in a written will constitute legal proof that “the reasons for the change are valid.” Quite understandably then, in theirs case the signatures ought to have included those of at least two relatives of the deceased, in order to signify that, in disinheriting the appellant the deceased had at lest a semblance of sanction by his own clan. I would hold, therefore, that the will made in favour of the respondent was void.” (3) Appeal allowed.