A contentious proceeding, which is contested or disputed, is one which occurs where two or more parties are in dispute over probate and/or letters of administration matters. The most common issues that give rise to contentious proceedings in probate and/or letters of administration matters include, but are not limited to:-
- disputes between executors/executrix and
beneficiaries of a deceased’s estate;
- disputes among beneficiaries of a deceased’s
estate, such as entitlements of such beneficiaries;
- validity of wills, whether made under duress, coercion
or under undue influence; and
- disputes regarding the capacity of the
executor/executrix or administrator/administratrix.
If a person intends to raise any objection(s) based
on the grounds above mentioned (and/or others), then such a person will have to
raise an objection which is known as a caveat. A caveat can be defined to mean a
warning that particular issues should be considered before any court action can
be taken. Normally, a caveat is lodged by a person who is known as a caveator
against a petitioner in such proceedings (who can either be an executor/executrix
or administrator/administratrix) who
petitions for a grant of probate or a letter of administration.
The procedure for lodging a caveat is governed by sections 58 and 59 of the Probate and Administration of Estates Act, Chapter 352, Revised Edition of 2002 (hereinafter referred to as “the Act”), together with rule 82 and 83 of the Probate and Administration of Estates Rules (hereinafter referred to as “the Rules”).
The procedure are as follows:
- After a petitioner filing an application for a
grant of probate or a letter of administration, the court will issue a general
citation which is in Form No. 58 of the Rules to inform the public that an
applicant has made an application that
will enable him to be granted a probate or letters of administration (also see Rule
75 and 76 of the Rules).
- The general citation is advertised at the court
which issued it, as well as in a newspaper of daily circulation in Tanzania. An
interested party (in this instance, a caveator) upon seeing and/or taking notice
of the general citation and if he or she intends to object to the application,
will be required to lodge a caveat which is in Form No. 62 of the Rules. The
caveat is to be filed within fourteen days (14) from the date of the last
publication of such citation.
- After a caveat is lodged, the petitioner is
required to make an application for citation to a caveator vide Form No. 63 of
the Rule within thirty (30) days and in serving this application for citation
to a caveator it is to be accompanied with a copy of the petition that was
filed by the petitioner together with all other documents which were used to
petition. If the petitioner fails to make such application within the timeframe
specified above, the Registrar of the court will issue a notice to the petitioner
under Form No. 63A of the Rules directing the petitioner to lodge the application
for citation to a caveator within a further
period of twenty one (21) days from the date of the service of such notice. If
upon receiving the notice and after the lapse of the additional twenty one (21)
days (which is more or so a grace period) the petitioner fails to make the application
for citation to a caveator, then the petition filed by the petitioner shall be
deemed to have been withdrawn automatically, that is to say, the grant of probate
or letters of administration will not be issued unless the petitioner files an application for restoration.
- If the petitioner makes the application for citation
to a caveator within the required timeframe, then upon such application to be
received by the court, the Registrar will issue a citation to a caveator (hereinafter referred to as “the Citation”) which is in Form No. 64 of
the Rules. The purpose of this is to call upon a caveator to state within a
period of thirty (30) days from the date of service of the Citation, whether or
not he supports the grant of probate or a letter of administration to the
petitioner. If a caveator does not support the grant, he will have to enter
appearance by using Form No 65 of the Rules accompanied by an affidavit
which will state the rights and interests of a caveator together with the
grounds of objection to the petitioner’s application for the grant of probate
or letters of administration. A copy of each of these documents will then be
served on the petitioner. In practice, sometimes an application by way of chamber
summons is used instead of Form No. 65.
- Upon a caveator entering appearance in the modality described above, the proceeding will take the form of a normal civil suit. That is to mean, for the purpose of determining a caveat, there will not be a probate cause but it will be a civil case pending determination of the probate cause. If a caveat is successful and is determined in favour of a caveator and upon the court being satisfied that the property which is the subject matter of caveat is not subject to distribution, then such property will be excluded from such distribution, however, if a caveator fails to prove his interest in the property, then the caveat will be dismissed and the matter will be taken back as an ordinary probate cause.
The procedures that are discussed hereinabove are mandatory and important procedures that one must be conversant with in dealing with either grants of probate or letters of administration. It is also important to be well versed in the laws governing such procedures including but not limited to the Act and the Rules and also the appropriate court to file the matter.
By Said Nassor Salum – Advocate
Kilindu Giattas & Partners
Note: This is not a legal opinion and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.
