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12 July 2013 Written by  Mellese Damtie and Solomon Kikre

Form and proof of wills

 

There are three types of wills (See Art 880). All of them are required to be made by following the formal requirements prescribed by the law. Failure to fulfill these formal requirements may cause the invalidation of the will as a whole. The law is so strict as far as fulfillment of the formal requirements is concerned. As it is already indicated above, the testator is not in the position to defend him/her when the will is opened. Even if absolute protection of the intention of testator is not a possibility, the law tries to seal all the possible loopholes which might be created during the making of the will.

A.      Form of wills

I)     Public wills

A public will is a will that is read in the presence of the testator and of four witnesses. The testator can write the will in the presence of the witnesses. He/she can also write the will in the absence any person. That is, the testator may write the will by himself/herself or he/she may get it written by another person under his/her dictation in the presence of witnesses or even in the absence of the latter. The most important thing, as far as a public will is concerned, is the will has to be read in the presence of the testator and of four witnesses. Reading the will in the presence of the testator and of four witnesses is not sufficient. There must be an indication of the fulfillment of this requirement in the will itself. It can be indicated in the following manner:

“...This will is read in the presence of the testator and of four witnesses.”

If the will does not contain such an indication, it could be invalidated. The absence of such indication may cause the invalidation of the will. Therefore, utmost care should be taken when public will is made. Moreover, the testator and the four witnesses should put their signature immediately after the will is read. This is a very strict rule. Assume that one of the witnesses goes out after the completion of the reading but before the will is signed. If he/she comes back after a little while, and when he/she is back, the testator and the three witnesses have already signed the will, the will shall be of no effect and it is subject to invalidation.

A deaf person can take part in a will as a witness if he/she is literate. He/she can read the contents of the will just after it is drawn up. If he/she is unable to read the contents of the will, his/her presence serves no useful purpose as he/she has no mechanism of knowing the contents of the will. Blind people may take part in a will as witnesses so long as they hear when the contents of the will are read. The only thing expected of them is to understand the language in which the will is drawn up.

The law in Art 882 prescribes that the number of witnesses could be reduced to two if one of them is a court registrar, a notary or a judge (See the Amharic version) in his/her official capacity. So a judge, or a notary or a court registrar represents three ordinary witnesses, if such person acts as a witness in his/her official capacity. 

II)    Holograph will

Holograph will is a will that is totally made by the testator himself/herself in the absence of witnesses. Only literate persons may make a holograph will. It is the testator that writes a holograph will totally and if there is an additional word (even if it is a single word) written by the hand of another person, that is a sufficient cause to invalidate the will wholly. The testator must explicitly indicate, in the holograph will, that it is a will. Absence of such an indication is also a ground for the invalidation of the will. As a rule, the testator himself/herself should fully write a holograph will. If it is a handwritten will, it is possible to know for sure that it is written by the testator. Everyone has his/her own style of writing. A machine-written document has no individual style and it is not possible to identify who has written it. Therefore, the law requires a handwritten indication of the fact that the testator writes the will using a machine. The handwritten indication should be included on every page of the will. This is to confirm that the machine written holograph will has been really made by the testator.

Art 886 of the Civil Code advises the testator not to simply reproduce graphic symbols without understanding their meaning.

Someone may write a will using his/her handwriting style.  This may happen without understanding the meaning of what has been written in the document containing the will. For instance, you understand English and Afan Oromo. However, you may not necessarily understand French or Sidama language. But you can copy a document that is written in French or Sidama language, as these languages use the same script (the Latin script). If you do so, it is said that you have reproduced graphic symbols without understanding their meaning. In such circumstances, the one who has produced the graphic symbols is not a real testator. Because such person simply copied a will in a language that he/she does not understand.

With respect to Art 888, the will refers to another document. You cannot understand the provisions of the will without referring to another document.  When the will refers to another document or when it is impossible or difficult to understand the will without referring to another document, such a document must have been written and signed by the testator.

 

Example

Assume that the testator had acknowledged his child born outside marriage or he had written a letter to child’s mother recognizing that the child was his.  If the will says, for instance:

“I hereby bequeath Birr 25,000 to my child whom I acknowledged or recognized sometime ago”.

 

In such cases, we cannot understand the will, unless we supplement it with the acknowledgement document or letter.  The law under Art 888 requires that such a document or letter should be written and signed by the testator.

III)  Oral will

Oral will is a will made verbally to two witnesses. As you might have understood from Art 892 of the Civil Code, the testator does not make an oral will under normal circumstances.  He/she makes such a will when he/she feels that he/she is going to die within short period of time, particularly after accidents, shocks or similar situations.  It can be said that oral will is not a proper will.  The testator can make only restricted testamentary dispositions through an oral will. That is, the testator cannot make any order of his wish by way of an oral will.  The law has listed down the contents of an oral will. The testator cannot add other testamentary dispositions, which are not included in Art 893.

The law allows the testator to make several wills during his/her lifetime.  This is also the manifestation of his right to make, revoke or alter a will at any time.  The contents of different wills made by the testator may or may not contradict each other. If the provisions of various wills contradict each other and cannot be enforced together the latest will shall prevail. (See Art 895)

Proof of will

It is a commonplace practice that there are lots of controvercies on the validity and existence of proof. The one who claims a right in a will has to prove one or both of the following two things. First, he/she has to prove the existence of the will.  That is, he/she has to show a will made by the testator. Second, he/she has to prove the contents of a will.  In other words, the claimant has to show the fact that he/she is beneficiary of the will. 

From Art 897, one can see the following important points:

$1a)   The existence and contents of a will (whether a public or holograph will) shall be proved only by producing the original will itself or the copy of the original will, certified to be true by the court registrar.  The court registrar could issue the copy of the original will, if he/she had received the original will to be deposited in his/her archives.  Otherwise, the claimant shall only present the original will.

$1b)      To benefit from the will, approval by presenting the will itself is obligatory and no any other means of evidence can be possible.  For example, witnesses cannot prove the contents of a public will.

$1c)   If someone destroys or causes the destruction of a will by his/her fault or negligence, such a person may be obliged to pay compensation to the beneficiary of the will.  To get compensation from the person who has destroyed or caused the destruction of the will by his/her fault or negligence, the beneficiary can prove the fact that he/she is a beneficiary by any means of evidence. For instance, he/she can prove that he/she is beneficiary of the will by producing witnesses.

 

Revocation and lapse of wills

Revocation of wills

A will is always revocable, until the death of the testator. A testator may make an agreement with a beneficiary not to revoke the will. However, sometimes elderly people who have no descendants of their own may promise to leave some property to a person, on condition that the latter nurses the former. This promise cannot be enforced as the will is still able to be revoked.

There are various ways in which a will may be voluntarily revoked:

$1a.           By another will.

$1b.                  By an express intention to revoke, made in the same manner as a will, i.e., this must comply with the formalities set out by the law.

$1c.                   By destruction.

$1d.                  By alienation of the thing bequeathed

  1. Another will

The testator may, in his will include works like: ‘I hereby revoke all former wills and testaments made by me’. The testator may revoke specific clauses of a will, while leaving the rest of it intact. As has been stated above, a new will usually impliedly revokes a previous will. But sometimes, it may be disputable whether it was the intention to supplement the previous will. This may be the case if the two wills are not inconsistent. The second will may thus operate as a kind of codicil. A codicil is a formal document which varies, but does not revoke, a will.

  1. An intention to revoke

A will may be revoked by any other written instrument, provided it is executed with the same formalities as are required for a will. For instance, the testator may revoke wholly or some f the provisons of a previously made will not by a new will but by a document made by following similar formalities. Even if such document is not a will it has a power to revoke a valid will.

  1. Destruction

A will may be revoked ‘by the burning, tearing or otherwise destroying . . . with the intention of revoking the same’. Some formal act of destruction seems to be necessary, although the whole of the will need not be destroyed. Merely throwing the will in a waste-paper basket is not sufficient, even if the testator indicates to a third person that he/she considers it to be an act of revocation.

$1d)  Alienation of the thing bequeathed

By alienating the thing bequeathed, the testator can revoke the will he/she has made.  For instance, in his/her will made last year, assume he/she gave a mule to his/her friend.  Now, if the testator sells or donates the mule to some other person, it means that he/she has revoked his/her will. You must note here that the thing bequeathed may come back to the possession of the testator at a later date. However, that does not cause the revival of the will which was already revoked. (See Art 900)

Lapse of wills

As discussed above, it is the testator by his/her wish who revokes the will he/she has made. Lapse of will takes place by the operation of the law. There are a number of reasons for the revocation of a will by the operation of the law. The reasons depend on the type of the will.  Therefore, various types of wills have various reasons for their lapse.

Failure to deposit a holograph will

According to Art 903 of the Civil Code, a holograph will shall lapse where it is not deposited with a notary or in a court registry within seven years since it has been made.  No such imposition exists for a public will.

Birth of child

Another reason for the lapse of a will is birth of a child.  If a child is born after a will is made (whether a public or a holograph will) such a will, shall lapse if the newly born child accepts the succession.

From Art 905 of the Civil Code, you may observe the following points:

Although the law provides that the will shall lapse if a child is born to the testator after making such a will, there is a situation where such will could be maintained totally or partially by the court.  The court may maintain the will irrespective of the birth of the child, if it had been of the opinion that the testator would have maintained the will despite the birth of the child.  For instance, if the testator made a will while his wife was expecting a child, it would be clear that the testator had intended to maintain the legacies ordered in the provisions of the will even if a child was going to be born to him.  A discretionary power is given to the court as to the maintaining of the will as total or partial.  The court may arrive at a decision on this matter after having seen the prevailing circumstances.

When the will, which the testator makes before the birth of the child, is active either wholly or partially, the newly born child should receive, at least, three–fourths of the share he would receive in the intestate succession.  That is, 75% of the value which he would be entitled in the intestate succession.

Dissolution of marriage

According to Article 906 of the Civil Code, legacies made in favor of a spouse of the testator shall lapse where the marriage of the testator with that spouse is dissolved through divorce or court order when the marriage is concluded without observing the conditions for the validity of marriage.  However, such a legacy cannot lapse where the marriage is dissolved by death.

When a husband or a wife makes a will to the benefit of his/her spouse, it is believed that the testator has made the will with the expectation taht the marriage would continue until his/her death.  Therefore, the testator may give a considerable amount of personal property to his/her spouse with the expectation that the marriage would persist. If the marriage dissolves through divorce, the reason that has caused the making of the will to the benefit of the spouse is already lost.  Unless such a will lapses, it may seriously affect the interests of the relatives of the testator.

Death, unworthiness, or renunciation by a legatee

Art 907 lays down the rule of lapse of legacies.  According to Art 907, three factors cause the lapse of legacies.

When the legatee dies before the testator.  In this case, the legatee has no capacity to succeed the testator since he does not fulfill the requirement of survivorship.

When the legatee cannot succeed the testator.  This has a relation with unworthiness.  When a legatee is condemned as unworthy, anything destined to his benefit shall lapse.

When the legatee does not want to take the legacy.  This has something to do with the renunciation of the legatee to the succession of the testator.  The law passes the legacy when anyone renounces the succession of the testator, as it does not consider him as the legatee of the testator.

Although we say that the legacy shall lapse where the legatee dies before the testator, there is a possibility that representation could take place.  As you remember from your previous studies, only children or descendants of a person can represent him/her.  According to Art 908(a), the legatee who died before the testator would be represented if he/she is a legatee by universal title (or a universal legatee). 

There is a very narrow chance for the existence of representation in the case where the legatee is a legatee by singular title (or a singular legatee).  According to Art 908 (b), where the singular legatee dies before the testator, the descendants of the singular legatee shall represent him only when the legacy destined to such singular legatee devolves upon the state as a result of failure of the singular legatee to receive the legacy. According to the rules of intestate succession, the hereditary estate shall devolve upon the state when relatives up to fourth relationship do not survive the deceased. In the above situation, the rules of the intestate succession shall regulate the singular legacy, because of the prior death of the singular legatee.  If a relative survived the testator (from the nearest relative ᅳ a child — up to a far apart relative at the fourth relationship), such a relative would receive the legacy.  In the absence of any relative up to the fourth relationship, the legacy shall devolve upon the state.  Instead of devolving the property upon the state, the law favors the representatives of the predeceased legatee to inherit the deceased by way of representation.