CUSTOMARY LAWS

Customary Law may be defined to mean that law which is either written, declared or unwritten
but is recognized by the community as having the force of law. It is applicable to African
members of the Community irrespective of their religious affiliation.
LOCAL CUSTOMARY LAW (DECLARATION) (NO.4) ORDER GOVERNMENT NOTICE
NO. 436 OF 1963
Local Customary Laws (Declaration)1 explains that Inheritance follows the patrilineal side. The
administrator of the deceaseds property is the eldest brother of the deceased, or his father and if
there is no brother or father, can be any other male relative chosen with the help of the clan
council. If there is no male relative, his sister is the administrator. After the administration of the
estate plan is established, inheritance property is usually distributed immediately.
Rule 202 provides thus; Women can inherit, except for clan land, which they may receive in
usufruct but not sell.
Rule 27 and 283 provide that a widow has no share in her husband's estate if there are issues of
the union and the husband cannot inherit from his wife who dies intestate, unless the wife left no
children or any member of her own family.
Local Customary Law (Declaration)4 explains that, A Will is a statement, which is voluntarily
made by a person during his lifetime to show his intention and how he decided his property to be
1 (No. 4) Order, Government Notice (GN) 436/1963, Schedule 2, Laws on Inheritance
2 The Local Customary Law (Declaration) (No.4) Order 1963, GN. 436 of 1963
3 Ibid note 2 above

distributed upon his death. A Will can be of two types; an oral Will and a written Will. Special
witnesses who must be present at the same time shall witness a Will. A Will is invalidated if a
testator is of unsound mind because of insanity, illness, and drunkenness or sudden anger.
Rule 77 (1) (Law of Persons)5 provides that a childless widow is entitled to 2 of the property
acquire during her married life with the deceased after the debts of the deceased have been
repaid.
ISLAMIC LAWS
A number of pieces of legislation provide for the application of Islamic Law in Tanzania
(Mainland) in matters relating to Succession/Inheritance where parties are members to the
Islamic faith. The following are the pieces of legislation:
Section 6(1)6 provides that;

HINDU LAW:

4 (No. 4) Order, Government Notice (GN) 436/1963, Schedule 3, Laws on

Wills/Probate
5 (No. 4) Order, Government Notice (GN) 436/1963, Schedule 1, Laws of Persons
6 The Succession (Non-Christian Asiatic) Ordinance (Cap. 112)

Hindu Law of Succession/Inheritance, that is the Hindu Wills Act, 1870, was imported to
Tanzania (Mainland) through the Indian Laws (Application) Ordinance (Cap.2) and made to
apply to the Hindu Community. However, the paramount difficulty in the application of Hindu
Law of Succession/Inheritance is its limited applicability within the Hindu Community. So far
there are no known court cases on the subject in the country.
Section 3(1)7 provides that by virtue of the Indian Acts (Application) Ordinance (Cap.2) Hindu
Law is applicable in Tanzania, as is the case in Kenya.
The Hindu Wills Act 1870 which was made applicable to Tanzania (Mainland) by the Indian Acts
(Application) Ordinance, Cap. 2 define a Will as: the legal declaration of the intentions of the
testator with respect to his property which he desires to be carried into effect after his death.
THE INDIAN SUCCESSION ACT
The Indian Succession Act, 1865 is basically codified English law. It is an old piece of legislation
which was imported to Tanzania (Mainland) from India as it was in India in 1907. While in
India, the Indian Succession Act, 1865 has undergone a number of amendments and
modifications, this has not been the case with the one in Tanzania.
The provisions of the Indian Succession Act 1865 differ from those under the English law today.
The Act provides for freedom of testamentary disposition to the extent that the testator/testatrix
may dispose of all his/her property by will without providing anything to his/her dependents. It
does not give recognition to illegitimate children and makes no distinction between movable and
immovable property. It does not apply to Muslims though it may apply to Christians and those of
European origin resident in Tanzania (Mainland).
7 The Hindu Succession Act Cap. 158

Section 268 of the Act gives the kindred of the deceased (including illegitimate children) the right
to inherit when the deceased did not leave any children or any linear descendants.
Section 469 of the Act provides for persons capable of making wills that; every person of sound
mind and not a minor may dispose of his property by will.

8 The Indian Succession Act, 1865

9 Ibid note 7 above