RE: INNOCENT MBILINYI, DECEASED [1969] HCD 283

THIS IS A PROBATE AND ADMINISTRATION CASE from Tanzania, East Africa: The Issue was the Choice of Law to be applied in the administration of The Late Innocent Mbilinyi's Estate.

RE: INNOCENT MBILINYI, DECEASED [1969] HCD No. 283
Georges, C.J.

The Administrator General applied for directions concerning questions which have arisen in the course of the administration of th estate of Innocent Mbilinyi, deceased. The affidavit in support states out that the deceased, a Roman Catholic by religion and MNGONI by tribe died in an accident on 29/2/1968. Surviving him were his widow ELIZABETH whom he married by Christian rites, three (3) infant children of the marriage, his father, his mother, four (4) brothers and five (5) sisters.

The deceased died intestate and accordingly the succession to his property could be determined either by customary law of the WANGONI as set out in the Customary Law Declaration order GN 436/1963 or according to the law applicable to Christians who die domiciled in Tanzania, that is to say, the Indian Succession Act.

The Widow, through her advocate, contends that the Indian Succession Act is applicable while the father and the brothers and sisters state that customary law is applicable.

Leave was given to the widow and the brother HUSTIENE to file affidavits setting out facts from which the mode of living of the deceased could be inferred. The widow had filed an affiavit. Despite several adjournments to enable him to do so no affidavit has been filed by HUSTIENE or by any of the brothers and sisters.

The widow is a Mchagga by tribe and also a Roman Catholic. She says that she had learned from her husband that he had left Songea when he was about seven years old and had been educated entirely outside the region.

In or about the year 1956 he went to Makerere College, Uganda, where he graduated as Bachelor of Arts in 1960. In 1961 he took up employment with SHELL E.A. LTD. as a Salesman after which training was stationed in Moshi. That very year he was transferred to Dar es Salaam where he met her. In March, 1962 they were married and thereafter lived in Mbeya and Moshi. In 1964 the deceased joined Government service and was in 1967 promoted Deputy Director of the State Lottery.

She avers that the fact that the deceased and herself were of different tribes helped to separate both of them from their tribal backgrounds.

The elders of both tribes appeared to disapprove of the attachment and the subsequent marriage. She states that the deceased had very often expressed his happiness at the fact that they were both Christians and had made it clear that he did not wish to have any of his affairs regulated by customary law. She had visited her husband's family once in 1962 and she describes her reception as cool if not actully unfriendly. They visited again in 1964.

Apart from these visits she was not aware that there had been any contacts between the deceased and his relatives.

As far as she was concerned the deceased relatives were strangers. Neither during the lifetime of the deceased nor after his death had they ever visited her nor had they ever brought gifts for the children or attempted in any way to win their affections.

She states also that the deceased had told her that he had made her the beneficiary under two (2) policies of insurance on his life. These policies are the principal assets in the estate. Neither policy was in fact ever assigned to the widow, but in one of the policies the deceased names her in the application form as his proposed beneficiary.

HELD:

On these facts which are in no way controverted I am satisfied that it can be said that the deceased had abandoned the customary way of life in favour of what may be called a Christian and non traditional way. There is satisfactory evidence that he was to a large extent alinated from his family and that his children had no connection whatever with them. Accordingly I would direct that the law to be applied in the administration of the estate of the deceased should be Indian Succession Act.
(emphasis supplied by me)