THE LEGAL BATTLE TO INHERIT THE ESTATE OF THE BUSINESS TYCOON LATE REGINALD MENGI: HISTORIC AND MONUMENTAL JUDGEMENT BY HIS LORDSHIP MLYAMBINA.
"The dead commands nothing from his grave except what the living allow him to do."
PART 1: BRIEF GENERAL OVERVIEW.
Just Yesterday, even before the legal shock waves of "Utakaso Doctrine" ( Sanitio in Radice ) cools down and even before the dust thereof settles in the case of Marco Elias Buberwa Vs Agness Kokushekya Elias Buberwa, Misc. Civil Application No. 235 of 2020, our very own legal mind of this great res republica, His Lordship Mlyambina delivered the historic and monumental Judgment in Re Estate of Late Reginald Abraham Mengi which can be cited as Benjamin Benson Mengi & 3 Others Vs Abdiel Reginald Mengi & Benjamin Abraham Mengi, Probate and Administration Cause No. 39 of 2019.
This monumental judgment embodies in itself myriad of new legal principles and doctrines which significantly or radically changed landscape and inheritance legal equation of the Law of Succession in Tanzania.
Every Probate Lawyer in Tanzania has two options, either he reads and comprehends this monumental judgment very well to remain relevant as expert in the realm of Law of Succession in Tanzania or ignores it. If he ignores it, by default, he will practically find him delisted from the list of experts of the Law of Succession in Tanzania as this monumental judgment radically changed landscape and inheritance legal equation of the Law of Succession in Tanzania.
Briefly: the Last Will and Testament of the Late Dr. Reginald Abraham Mengi was nullified and declared to be null et void for want of Testamentary Capacity contrary provisions of Section 46 of the Indian Succession Act, 1867 and contrary to ratio decidendi enunciated in the famous case of Banks Vs Goodfellow [1870] LR 5 QB 549 which was cited with approval by Court of Appeal of Tanzania in the case of Vaghella Vs Vaghella [1999] 2 EA 351 which is one of local case that recignises this principle. Additionally, the Last Will and Testament of the Late Dr. Reginald Abraham Mengi has been nullified on ground of unreasonable disiheritance of heirs (a son and a daughter from the first marriage) something which is repugnant to, and inconsistent with, Restrictive Testamentary Freedom Doctrine enunciated by His Lordship Mlyambina in this case.
As consequence of nullification of the puported Last Will and Testament of Late Mengi, the 1st Caveator and 2nd caveators, Mr. Benjamin Abraham Mengi and Mr. Abdiel Reginald Mengi respectively were appointed by High Court to be administrators of the estate of Late Reginald Abraham Mengi.
PART 2: JURISPRUDENTIAL SIGNIFICANCE OF MENGI'S PROBATE CASE.
Through Mengi's Probate Case, His Lordship Mlyambina has made the following contributions in endavour to develop the legal system;
(1) Mengi's ProbateCase marks the jurisprudential shift on area of Law of Succession from Absolute Testamentary Freedom Doctrine as enunciated in the famous English case of Banks Vs Goodfellow [1870] LR 5 QB 549 to a more relative flexible legal principle by name of Restrictive Testamentary Freedom Doctrine which is a more advanced stage and space than all common law jurisdictions.
(2) As result of the said jurisprudential shift, Tanzania officially abandoned Absolute Testamentary Freedom Doctrine which existed and survived for more than 100 years.
(3) The new legal principle namely Restrictive Testamentary Freedom Doctrine introduced some elements of Force Heirship Sub-System in Tanzania in the realm of statutory succession law as result testator (parent or spouse) is now under legal obligation to bequeath his or her estate to members of his own nucleus family related to him by blood, marriage and adoption in a certain circumstances.
(4) This judgment imposed 5 restrictions on what is used to be known as unfettered discretionary power of testator in realm of Testamentary Freedom to bequeath his estate as it pleases him which now operate as exceptions to general rule of Testamentary Freedom.
(5) The Doctrine of Testamentary Freedom continues to exist in Tanzania, however, it is no long absolute rather it is restrictive in its very nature as result the Doctrine of Testamentary Freedom admits the following 5 exceptions;
(a) Matrimonial Assets Impediment;
(b) Statutory Heirs Rule;
(c) Public Policy Bar;
(d) Exturpi Causa limitation; and
(e) Lack of Testamentary Capacity;
(6) A spouse (especially husband) is now barred by law to include and bequeath the share of matrimonial assets of another spouse (especially wife) as part and parcel of his/her estate.
(7) With these 5 exceptions or restrictions, now this judgment marks the end of Absolute Testamentary Freedom of Testator under statutory law in Tanzania.
(8) Notwithstanding the legal obligation of Testator to compulsorily bequeath part of his estate to his children and spouse under statutory law, yet as exceptions to general rule on Testamentary obligation on the tastator, now the Testator is entitled to disinherit his child or spouse in the following circumstances;
(a) Where the son or daughter of testator commits adultery with the spouse of the testator;
(b) Where the spouse commits adultery with son or daughter of testator;
(c) Where a son, daughter or spouse attempt to murder the testator or his or her spouse;
(d) Where a son, daughter or spouse neglects to, fails to look after testator or fails to take care of testator in hunger or sickness or during old age without justifiable reasons;
(e) Mistreatment of testator by words or deeds;
(f) Where son, daughter or spouse by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;
(g) Any other ground which the court may determine to be sufficient cause for disinheritance of son, daughter or spouse.
(9) His Lordship Mlyambina through this judgment has developed what is known as the Dominant Part Doctrine or rather the Dominant Part Test which is the new legal test which should be used to determine applicable law on estate and Last Will of deceased person in the circumstances of hybrid mode of life, this is a legal novel which probably is not known anywhere in all common jurisdictions .
(10) Now, in Tanzania there are 3 legal tests which should be used by court of law to determine law applicable to regulate the estate and last will and testament of deceased person namely;
(a) Intention of Deceased Test.
(b) Mode of Life Test
(c) Dominant Part Test.
(11) The Last Will and Testament of the Late Dr. Reginald Abraham Mengi was nullified and declared to be null et void for want of Testamentary Capacity contrary provisions of Section 46 of the Indian Succession Act, 1867 and contrary to ratio decidendi enunciated in the famous case of Banks Vs Goodfellow [1870] LR 5 QB 549 which was cited with approval by Court of Appeal of Tanzania in the case of Vaghella Vs Vaghella [1999] 2 EA 351 which is one of local case that recognises this principle.
(12) His Lordship Mlyambina modified the Common law Principles namely Testamentary Freedom Doctrine to suit local circumstances of Tanzania and its inhabitants under provisions Section Section 2 (3) of the Judicature and Application of Laws Act, Cap. 358 as judicially considered by several several cases in Tanzania including case of DPP Vs Vogel [1987] TLR 100 and Tanzania Air Services Limited Vs Minister for Labour & 2 Others [1996] TLR 217.
(13) His Lordship Mlyambina addressed issue of active role of judge in adversarial legal system and the modification of adversarial system in Tanzania to accommodate some elements of Inquisitorial Legal System .
(14) The Last Will and Testament of the Testator is liable to be invalidate and render null et void ab initio if it was made in contravention of any of 5 exceptions to the Doctrine of Testamentary Freedom list hereinabove.
(15) As consequence of nullification of the puported Last Will, the 1st Caveator and 2nd caveators,Mr. Benjamin Abraham Mengi and Mr. Abdiel Reginald Mengi respectively were appointed to be administrators of the estate of Late Reginald Abraham Mengi.
(16) Where the Last Will and Testament of the deceased Testator is nullified, the Letter of administration should be granted automatically where caveat is allowed there is no need for caveator to institute fresh legal proceedings in the light of Doctrine of Overriding Objective enshrined in provisions of Section 3A and 3 B of the Civil Procedure Code, Cap. 33 as by provisions of Section 6 of the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2018.
PART 3: BRIEF CONCLUSION.
The impact of this judgment is expected to extend beyond the territorial boundaries of the United Republic of Tanzania as this judgment stands in the best position to influence jurisprudential shift in East Africa Region in particular and in all common jurisdictions in general.
By Matojo M. Cosatta
19/5/2020.
