12 July 2013 Written by 

Wills

 

A will is the most satisfactory means of arranging for the devolution of a person’s property after death. In Ethiopia many people do not make wills even if there is no comprehensive data on the percentage of wills and intestate successions. While making a will, the testator makes a disposition of his/her property through a unilateral declaration of intention which does not require receipt by another party to become complete. The valid execution of a will requires that the testator possessed testamentary capacity at the time of execution and that the formal legal requirements were observed. For the most part, the testator is free to make his/her own arrangements. The only requirement is that the instructions in the will not contravene legal prohibitions or public policy.  A will is a juridical act that shall have a legal effect after the death of the testator or the will maker. It is an instrument by which a person makes a disposition of his/her property to take effect after his/her deceased, and which in its nature is ambulatory and revocable during his/her lifetime. A will is the instrument, which expresses the last wish of the testator. Some people say that a will remains only a draft during the testator's life, indicating its ambulatory nature.

There are different kinds of wills made by fulfilling the formal requirements that the law prescribes. The law is very strict with respect to the formality of making a will. A will that does not satisfy the required formalities is invalid by the court of law. Testamentary dispositions (wills) are declarations of intention. Thus, pursuant to the general provisions of the Civil Code, they can be invalidated or become ineffective.

It is believed that the Ethiopian society does not know much about the features of will and how to fulfill the formal requirements. This can be observed from the wills that are totally or partially invalidated by the courts due to failure to fulfill the formal requirements.

Will is different from donation in that donation is a contract whereby a person, the donor, gives some of his property or assumes an obligation with the intention of gratifying another person, the donee. Will is a unilateral juridical act which is different from contract, in which the latter needs at least two parties. Since donation is a contract, it needs the acceptance by the donee. The most significant difference, however, between donation and will is the time in which they are effected. Donation shall take place while both the donor and the donee are alive. As it has bees discussed above, will is ambulatory and hence becomes effective after death of the testator. Some similarities also exist between will and donation.

 

Conditions for the validity of wills

The conditions prescribed by the law must be satisfied to make a will a valid document. The will becomes effective after its maker has died. The testator is not in a position to express his/her wish while the will is effective. Because of this, the law has opted to enumerate very stringent conditions and formal requirements for the validity of wills. Failure to observe these conditions set by the law would render the will ineffective. Because courts do not hesitate to invalidate a will if they feel that the will has not complied with the required conditions. A will is the only evidence for the expression of the true intention of the testator. To serve this important purpose, it needs to fulfill all the necessary conditions for its validity. The following sub-titles are some of the conditions. 

Personal nature of a will

The testator should seek the assistance of no one else. He/she should make the will by himself/herself. No any other person may take part in the making of a will on behalf of the testator or by way of assisting him/her. Nor the testator could appoint another person to represent him/her as far as making, modifying or revoking a will is concerned. Except for will and other specifically stipulated juridical acts, another person may represent the testator. The following definition illustrates well this condition.

Art. 2199 — Definition

Agency is a contract whereby a person, the agent, agrees with another person, the principal, to represent him and to perform on his behalf one or several legally binding acts.

Example

Abebe may authorize, by a contract of agency, Beletu to perform some juridical acts on his behalf. Based on this contract of agency, Beletu may administer the Abebe’sproperty, or she may be authorized to sell the property.  However, Abebe cannot in any case authorize Beletu to make a will on his behalf. Moreover, Beletu cannot alter a will made by Abebe nor can she revoke any will of Abebe.

The testator is not in a position to express his/her true wishes after his/her death. If someone is allowed to make a will on behalf of the testator, he/she can take advantage against the true intention of the testator very easily. For instance, Ayele, an indecent child of Ato Bekele may make a false will in the name of his father upon the death of Ato Bekele or even before his death. To narrow the occurrence of such situations the law lays down very strict formalities to make a will.

Another scenario of the personal nature of wills is the one stipulated in Article 858. According to Article 858 of the Civil Code, no two persons may make a will together using the same document. The law believes that the testator cannot express his/her free intention when he/she makes a joint will. That is, if the testator makes a joint will, such will could influence his/her free intention to some extent. A will is an instrument that the testator can repeatedly alter or revoke during his/her lifetime. It would be difficult for the testator to alter and revoke a will if he/she makes a will together with another person.  This would definitely affect his/her freedom in making, altering and revoking a will. In some other jurisdictions, a will made by spouses jointly is valid. In Ethiopia, even spouses cannot make a will together irrespective of the fact that they have community of property in marriage.

A person may not bind himself/herself to make, to modify or to revoke a will to the advantage or disadvantage of any other person. That is, he/she cannot promise to make a will to the benefit of a relative, a friend or any other person. In addition, he/she cannot promise to make, modify or revoke a will to the disadvantage of any person. When it is said that the will maker cannot promise, it should not be taken in a sense that if he/she promises to make, modify or revoke a will, the testator may not be bound by such a promise. That is, notwithstanding the promise made, the testator can revoke the will at any time. See Art 859(2).

Capacity to make a will

Testamentary capacity is a special form of legal capacity. According to the Revised Family Code, testamentary capacity commences upon the completion of the 16th year. Prior to this, the minor cannot make a will even with the consent of his/her legal representative. After the age of testamentary capacity has been reached, the minor does not require the consent of his/her legal representative. Persons lacking testamentary capacity are those who, due to a state of mental disturbance, mental deficiency or unsound mind, are unable to understand the meaning of the declaration of intention they have made or to act in accordance with this understanding in the execution of a will.

Minors

A Minor is a person of either sex who has not attained the full age of eighteen years. According to the Revised Family Code of the Federal Government and that of Regional States, a minor can make a will once he/she attains the age of 16 years. The following Art is taken from the Federal Government’s Revised Family Code.

Art. 295 — Will.

$11.           The tutor may not make a will on behalf of the minor.

$12.                  A minor may not make a will before he attains the age of sixteen years.

$13.           The will made before he has attained such age shall be of no effect, notwithstanding that the minor has not revoked it after having attained the age of sixteen years.   

Even if the minor does not revoke a will, he/she made before the age of 16, after he/she has attained 16 years that cannot be a reason to maintain such a will.

Judicially interdicted persons

Judicially interdicted persons are those who are declared by a court of law not to perform juridical acts, such as making a will. One of the reasons for a judicial interdiction is a mental illness. You must derive the following important points from the reading of Arts 861, 368 and 862.

  1.                An interdicted person may not make a will after his interdiction.
  2.                A will made by the interdicted person before his interdiction is valid.
  3.             Although the will made by an interdicted person before his interdiction is valid, the court has the power to invalidate such will either totally or partially.
  4.             Although the will made by an interdicted person after his interdiction, is invalid, the court has the power to maintain such will either totally or partially.
  5.           When the court maintains a will made by the interdicted person after he/she is being interdicted, it shall consider the following points:

                      i. A legacy (money or property given to somebody through a  will) must not exceed five thousands Birr and;

                  ii. The heirs-at-law of the interdicted person (the heirs- at–law could be descendants or other relatives)should get a minimum of three-fourths of the succession. That is, the outsiders (non-relatives) can   take a maximum of only one-fourth of the succession.

Generally, the law considers that the person is healthy before his/her interdiction and his/her mental conditions will affect his/her will when the law takes such actions after his interdiction. In an actual situation, this may not always hold true.

Example

Consider that the court has interdicted Alemu on Meskerem 30th, 1999 E. C. Even if it is considered that his will made before this date is valid, his mental conditions during such period may be worse than the actual date of interdiction. Similarly, although a will made after the interdiction is not valid, the health conditions of the interdicted person may have improved and such conditions may lead the court either to maintain or only partially invalidate the will.

Insanity

As indicated in Art. 863, a will made by an insane person is valid unless it is proved that the person was a notoriously insane person at the time of making the will. There are scarce conditions in Ethiopia that make a person notoriously insane. (Remember your Law of Persons course) Therefore, getting a judicial interdiction of an insane person is a wise step to make the will made by such person ineffective.

When a testator makes a will, he/she must be careful not to include provisions that are contrary to law or morality. Moreover, the provisions of the will must not be difficult or impossible to execute.

Provisions Difficult or Impossible to Execute

Article 865 (1) tells us that a testamentary provision which fails to specify in a sufficiently clear manner its beneficiary or its object shall be of no effect. From this it is clear that the provisions of a will must clearly indicate who will be the beneficiary and what things or portion of things has been allocated to such beneficiary.

Example

In her will W/ro Kebebush expressed that: “Let somebody take my laptop computer.” It is impossible to determine who is that somebody. Therefore, the testator must clearly indicate the beneficiary of his/her will. Moreover, the testator needs to clearly indicate the beneficiary of his will. The word “object” refers to a property under the will. Hence, the testator should specify the property that he bequeathed to the beneficiary. If the testator says, “Let Ayele receive my something” in his/her will, it is also impossible to execute this will correctly. What thing should Ayele receive is not clear.

There is a similar problem in sub-art (2). In this case, the provision of a will is impossible or very difficult to execute or put it in practice. That is, if a provision of a will contains orders of the testator which cannot be put into action, such provisions shall be invalidated.  For instance, Ato Ayalew, in his will, gave the building of the Ministry of Education to his friend Lemma. It is not possible to execute this will, as the building of the Ministry of Education is a public property, not an individual’s asset. The testator can give by way of will property which belongs to him/her at the time of his/her death.

Illicit Provisions

In Art 866 the word “object” is to mean the aim, purpose or goal of the will. If the purpose of the will is unlawful, its provision shall be of no legal effect. Moreover, the provisions of a will shall be of no effect if their purpose or aim is immoral. However, there is no standardized immorality. Something immoral in a certain area may not necessarily be immoral at another area. Hence, the judgment on immorality could be left to local conditions.

Example

Colonel Wubshet made the following testamentary disposition:

My son Hailu married a woman who is a member of a political organization that I do not like. Although I insisted that he divorce that woman, he refused to obey my orders. If anyone, from among my family, causes the separation of my son from his wife, I bequeath him 10,000 Birr.

This will may be considered as immoral one. Because, marriage is a very respected social institution. Its dissolution must be initiated by the spouses themselves and by no one else. It is not proper to initiate the dissolution of someone’s marriage and it is this conditions that makes the will immoral. Moreover, Colonel Wubshet’s daughter-in-law has exercised one of her constitutionally guaranteed rights, as anyone has the right to be a member of his own will in a political organization… (See Art 38(2) of the FDRE Constitution)

Violence

The testator has to make a will only by his/her free volition. That is, the testator should not make a will under a threat or under any condition that could affect his/her freedom in the making of a will. Violence vitiates the freedom of making, modifying and revoking a will. The violence may not necessarily be directed toward the testator. It may happen against one of the testator's descendants, ascendants or against the testator's spouse. In this case, the violence or the duress may put under threat the life, honor or property of the testator or one of the above persons. Articles 1706-1709 and 1808-1818 are the provisions of the general contracts and they shall apply by analogy to treat the cases of violence with respect to making, modifying and revoking a will.

Undue influence

According to the Ethiopian law of succession, undue influence is not a ground to invalidate a will. This is the rule. Undue influence is more of psychological than physical. Someone may exert an excessive influence on the testator to have a will made, modified or revoked to the benefit of oneself. Although such influence affects the mind of the testator, it is not considered as a serious threat. However, there are exceptional circumstances in which undue influence could be a ground to invalidate a will or reduce the amount indicated in the will. Especially, the exceptional circumstance is relevant when the one who exerts the undue influence has a special opportunity to exert pressure on the testator. Generally, the exceptional situations depend on two circumstances:

a)  On the conditions of the testator; and,

b)  On the identity of the person who exerts the undue influence on the testator.

The conditions of the testator put him in a weak position in that he/she needs the help or assistance of other persons. The conditions that force him to seek the assistance of other persons could be his being a minor, sick, etc.

The identity of the person who is exerting the undue influence is the one who, by taking the advantage of the conditions of the testator, gets benefit from the will of the testator. This person could be the guardian or tutor of a minor testator, or he/she could be a physician who prescribes or applies a medical treatment to the testator or he/she could be a clergyman who prays for the testator or gives him a spiritual assistance.  A person, who takes part in the making of the will as a witness, interpreter, etc., can effectively exert undue influence on the testator and this situation is an exceptional one.

According to Art 869 of the Civil Code, if a minor testator makes a will to the benefit of his/her guardian or tutor, the court may totally invalidate the will (the testamentary provision in relation to the undue influence) or may reduce the amount given to such guardian or tutor. A guardian or a tutor has a big opportunity to exert influence on a minor testator and get a benefit unduly. But this provision shall not be effective if the guardian or tutor is an ascendant of the testator.

Likewise, the court may reduce the amount given to the beneficiary or invalidate the testamentary provision when the beneficiary is a physician who has given a medical treatment has exerted undue influence on the testator. For the purpose of applying the provisions of undue influence, it does not matter whether the physician is a professional or even he/she is a quack. Clergymen are persons who can easily influence the person who is, e.g., sick and needs prayer so that his/her soul would rest in the heavens. So the court may either reduce the amount given to such persons or invalidate the testamentary provision to the benefit of such persons.  Irrespective of the undue influence exerted on the testator, if the one who has exerted the undue influence is a relative by consanguinity of by affinity to the testator or if such person is the spouse of the testator, the will which is made to the benefit of the one who exerted the influence shall not be affected, that is, it becomes effective. (Read Arts 870 and also 871—876)

Fraud

Fraud is a deceitful act. However, it is not a ground to invalidate a will, if the will benefits the fraudster (the person who commits fraud). Here you should distinguish between fraud and undue influence. In the case of undue influence, the testator seeks others' help. In the case of fraud, the testator may not necessarily be in a weak position. For instance, the fraudster may promise to do something to the testator, if the testator makes a will to the benefit of such a fraudster. The fraudster may have no ability or capacity to perform his/her promise. Although the promise of the fraudster deceives the testator, it is not possible to invalidate the will that benefits the fraudster. Another example could be — a man who is tied by the bond of a marriage may tell to a woman that he is a widower and married her on that ground. If the woman makes a will to the benefit of the man hoping that the man is only her husband, this may not be a ground to invalidate a will. But as we will see under section Revocation and Lapse of Wills below, a will made to a spouse shall lapse if the marriage is dissolved by way of divorce.

Error

When a will is made as a result of error, the provisions of the Civil Code relating to invalidation of contracts shall apply. (Refer to the Civil Code provisions (Arts 1697 — 1705 and 1808 — 1818)) Generally, the mistake which led the testator to make the will in such a manner must be fundamental. That is, it is not logical to invalidate a will for every trivial or minor error. The error must be of a kind that, had the testator known the truth, he/she would not have made a will in such a manner. Moreover, the mistake must be clear from the wording of the will itself or from another document to which the will refers. The following example will illustrate this statement.

Only one or two of provisions of a will might have been affected by error and others may be good. The court may invalidate only such defective provisions by leaving others to be effective. The nullity of a certain defective provision cannot cause the nullity of other provisions of the will, unless there is a necessary connection between the execution of the provision, which has to be nullified, and the execution of another provision.  (Art 878)

The testator may make a legacy to depend on a certain condition. This means, the testator may impose certain condition or burden on the beneficiary of the succession. The beneficiary will receive the legacy when he/she accomplishes the burden or the condition imposed upon him by the testator. However, the law does not bind the beneficiary or the legatee to accomplish the burden if the condition is impossible to perform or it is illegal or immoral. That is, if there is an imposition of impossible, illegal or immoral condition or burden, the legatee can receive what is prescribed by the will to him/her without accomplishing what the testator ordered.

Example

The testator in his will disposes that the beneficiary of the will shall fly from the tip Mount Ras Dashen to the tip of Mount Tulu Walel without using any device. If the beneficiary accomplishes this task successfully, the testator wishes to give him a new car. This condition is impossible to accomplish. Therefore, the legatee can receive the new car without even trying the flight.

 

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