UPDATE ON TANZANIA SUCCESSION LAW: PROBATE AND ADMINISTRATION OF ESTATES LAW: PROTECTION OF BONAFIDE PURCHASER OF A PROBATED ASSET IN TANZANIA

• Difference between Administrator of an estate and an Executor and their powers
• Bonafide Purchaser for value
• Protection of the bonafide purchaser of value under the probate law
• Whether nullification of probate or letters of administration affect prior acts of the executor or administrator

1. Introduction

The Probate and Administration of Estates Act, Cap 352 defines an Administrator or administratrix in case it is a female, to be a person appointed by the court to administer the estate of a deceased person when there is no executor or no executor is able and willing to act, but the same law defines an Executor to be a person to whom the execution of the last will of a deceased person is, by the testator’s (a person who prepares and signs a Will) appointment, confided. Therefore, the administrator of the estate is appointed by Court when there is no Will or there is a Will which has not appointed an executor.

The administrator or executor as the case may be, is given mandate to collect, administer, distribute and dispose the estate on behalf of and for the benefit of the heirs.

A person who buys in good faith a property within an estate of a deceased being sold by an administrator with valid letters of administration or the executor of a valid will as the case may be, is referred to as the bonafide purchaser. The term “Bonafide” means “Without intention to deceive”. The bonafide purchaser is accorded protection under the law for all purchases made in good faith without notice of any encumbrance on the estate. In this article, the Litigation team of Breakthrough Attorneys highlights the legal framework governing protection of bonafide purchasers of probated properties in Tanzania

2. Powers of sale of the estate upon the Administrator or Executor

The provisions of Section 101 of the Probate and Administration of Estates Act Cap 352 R.E. 2002 provides for power of sale of the estate the administrator or executor of the estate. The provision states:

An executor or administrator has, in respect of the property vested in him under section 99, power to dispose of movable property, as he thinks fit, and the powers of sale, mortgage, leasing of and otherwise in relation to immovable property conferred by written law upon trustees of a trust for sale.

It is apparent from the above provision that the administrator may sell the property of the deceased. In addition, the administrator may mortgage or lease the property as he/she deems fit. This principle was enunciated by the High Court in the case of Mohamed Hassani Vs Mayasa Mzee and Mwanahawa Mzee [1994] TTLR 225. In this case the Court ruled inter alia,

“upon grant of letters of administration the grantee therof becomes fully mandated to deal with the estate the best way he can and especially does not need consent of eachof the heirs to dispose property of which are under his custody at all the time of administration”.

2.1 Nullification of the appointment of Administrator/Executor and protection of the purchaser of the property before nullification

There are instances where the administrator’s appointment is revoked after sale of the property to the bonafide purchaser. In that case, the bonafide purchaser of the property transferred to him by administrator or executor before nullification of the appointment is protected under the law. Breakthrough Attorneys’ lawyers were part of the team which successfully appealed to the Court of Appeal of Tanzania in MIRE ARTAN ISMAIL and ZAINABU MZEE vs. SOFIA NJATI, Civil Appeal No. 75 of 2008 (unreported) in which the Court overruled nullification of sale of the property and upheld the protection of the bonafide purchaser. The Court reasoned inter alia that;

“The 4 heirs of Yusuf Mzee, per page 18 of the record of appeal, consented to the sale of house No. 29 on Plot No. 4 Block 61 Livingstone Street, Kariakoo, Dar es Salaam. Under the circumstances, the administratrix lawfully sold the house in dispute to the 1^st appellant, Mire Artan Ismail. The latter was a bona fide purchaser for value without encumbrances. The proceeds of sale were distributed to the beneficiaries of the late Yusuf Mzee as shown on Pages 99 to 102 of the record of appeal. The property was properly transferred to the purchaser as shown on Page 103 of the record of appeal.”

In its decision, the Court of Appeal [Supra] was persuaded by the Halsbury’s Laws of England Vol.17 (2) 4^th Edition Reissue Paragraph 446, Butterworths which states;

“All conveyances of any interest in real and personal estate made to a purchaser by a person to whom probate or letters of administration have been granted are valid notwithstanding any subsequent revocation, or variation of the probate or letters of administration.”

It is now settled principle in our jurisdiction, as per the decision of the Court of Appeal cited above that subsequent revocation of letters of administration does not invalidate prior sale of the property to a bonafide purchaser. In that premise therefore, the law in our jurisdiction protects bonafide purchaser for value who purchased the property in good faith and without any notice of encumbrance.  In case of landed properties dispositions, this position is further fortified by the provisions of Section 67 (b) (i) of the Land Act, 1999 which somewhat protects the purchaser who is unaware of such defects in title at the time of sale if such purchaser has done his/her homework on other reasonably foreseeable defects.

“A person obtaining a right of occupancy or a lease by means of a disposition not prejudicially affected by notice of any instrument, fact or thing, unless:-
It is within that person’s knowledge, or would have come to that person’s knowledge if any inquiries and inspections had been made which ought to have been made by that person”

3. Conclusion

The paramount duty of the administrator and/or executor of the estate is to abide to the powers entrusted to him by the law. The law requires good faith on the part of the administrator and executor in dealing with the estate of the deceased.  Furthermore, the law empowers the administrator to sale, mortgage and lease the property of the decease for the interests of the beneficiaries. In the event one purchases the property from the administrator and subsequently the appointment of the administrator is revoked; the law afford protection to the bonafide purchaser. The protection is based on the fact that the bonafide purchaser was unaware of the defects at the time of sale. In essence such defects were non-existent at the time of sale and that the purchaser acted in ultimate good faith; hence the bonafide purchaser cannot be condemned of such encumbrances.

We at Breakthrough Attorneys recommend that purchasers must ensure that they do proper verification when purchasing land and other properties from executor/administrators as case may be. Due diligence can be premised on the following;

1. Validity of authority of the executor/administrator
2. Complementary consent of the heirs
3. Due diligence on the property, both patent and latent.

 

Important notice

This publication has been prepared for information only, and it does not constitute professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, Breakthrough Attorneys, its members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it