A. Contents of wills
The testator can determine the contents a will he/she makes freely so long as the contents of his/her will do not violate the law or so long as they are not contrary to public moral. Art 909 lists down the contents of a will. But this should not be seen as an exhaustive list. It only gives us illustration. These enumerations may guide the testator. However, it does not mean that he/she has no power to declare dispositions that are not listed in Art 909. You can infer this from Art 909 (e). The only limitation with respect to the contents of a will is, the testator cannot declare in his will anything illegal and/or immoral.
The general rules of interpretation of statutes may be helpful also to interpret the provisions of a will. When the provisions of a will are doubtful, we may need to interpret them. The intention of the testator is a key element as far as interpretation of a will is concerned. We, therefore, have to seek the intention of the testator. The will itself may reveal this or it may be obtained from other circumstantial evidence. You should note here that getting the intention of the testator is not an easy task. You should also note that the motive of seeking the intention of the testator must not drive us to interpret the will, if the provisions of the will are clear.
B. Interpretation of wills
In Ethiopia, there is no obligation for a will to be drafted or executed by a professional person. It is thus not uncommon for wills to be made without professional advice. ‘Home-made’ wills may use colloquial and unclear language. But even where a will is prepared by a professional, ambiguities and uncertainties can result.
Courts, especially the Supreme Court may construe (or interpret) a will. Words in a will, as in any other document, are construed in their context. The essential task of the court is to give effect to the intention of the testator. But this intention is to be deduced from the words used. It is not permissible to re-write the will simply because the court suspects that the testator’s words did not really specify his/her real intentions. In order to understand the language employed by the testator, however, it is possible to ‘sit in his/her armchair’.
The general rule is that words must be construed in their usual, or literal, sense. But this is subject to the ‘special vocabulary’ of the testator. And it also must yield to the special circumstances of the testator. Suppose a testator left a legacy to ‘my wife’. He was not lawfully married, but lived with a woman in an irregular union, whom he was accustomed to call ‘wife’. The lady would surely take the legacy, despite the fact that the word ‘wife’ was a misuse of the language.
There are also well-developed ‘canons’ or rules of statutory interpretation, which assist a court in construing laws made by the Parliament. As a general rule, these canons may be applied to the construction of any document, including a will. But, since the ordinary testator is unlikely to have the same drafting skills as a Parliamentary draftsman, the courts must use these canons with more care when they apply them to interpret wills. (See Articles 910 and 911)
Legacies by universal title
Sometimes it is difficult to distinguish between universal legacies and singular legacies. The law itself does not clearly give the meaning these terms. However, it is believed that the following explanation will shed light on the meanings of these terms. You may have recognized from your reading of Art 912 (1) the following four aspects of universal legacies.
- When the testator gives his/her whole estate to one person, the property given to the beneficiary is a universal legacy and the beneficiary is a universal legatee.
- When the testator gives his/her whole estate to two or more persons, the whole estate given to these persons is a universal legacy and such persons are universal legatees.
- When the testator gives a portion of his/her estate to one person, such a portion of the hereditary estate is a universal legacy and the beneficiary of the portion of the hereditary estate is a universal legatee.
- When the testator gives a portion of his/her estate to two or more persons, such portion of the hereditary estate is a universal legacy and the persons appointed to receive such a portion are said to be universal legatees.
From the above points one can see that a universal legatee is the one who is called to the succession to receive a certain portion of the hereditary estate, not a particular thing from the succession. Therefore, a universal legatee does not know what thing he/she is going to receive from the succession.
Legacies by singular title
What is a singular and legacy and who is a singular legatee? According to Art 912(2), any other disposition (that is, outside the ones discussed above) is a singular legacy. The general tendency of the law toward singular legacies is that, singular legacies are minor testamentary dispositions usually given to non–relatives. When a single item, such as a bicycle, a television, an overcoat, a watch, a radio, etc., is given to someone, the property is a singular legacy and the one who is in a position to receive such a property in kind is a singular legatee. A universal legatee, in majority of the cases, does not know what thing he is going to receive before partition of the succession.
Fitawrari Anjullo, in his testamentary disposition made the following persons beneficiaries.
My elder son Elias shall take 40% of my estate and in addition to the 40%; he shall take my wristwatch.
My little daughter Mary shall take 40% of my estate.
Let the mule be given to my spiritual father Aba Mathewos.
The maidservant who has served me for the past 25 years shall take 2000 Birr.
An environmental organization called Green Hill Movement shall take 10% of my hereditary estate.
Elias, Mary and Green Hill Movement are universal legatees since they are allowed to receive the hereditary estate in a certain proportion. Besides, Elias is a singular legatee since he is given a wristwatch in addition to the 40% portion of the hereditary estate. That is, Elias has two capacities in this will. Aba Mathewos, who is to receive a mule, is also a singular legatee. The last singular legatee is the maidservant, who is allowed to receive 2000 Birr.
A legacy may be given to the legatee in full ownership or only the bare ownership right may be given to the legatee. In the latter case, the legatee shall be entitled to use or derive the fruit from the legacy without having the right to alienate (sell or donate) it to third persons.
Legacies and rules of partition
The contents of Art 913 may be difficult to understand. The following example shall clarify the concept in Art 913.
Assume that Ato Habtamu made the following will by fulfilling all the legal requirements:
“My elder daughter Ayantu shall take the ISUZU pickup car.”
Assume also that this is the whole content of the will of Ato Habtamu. Let us consider that Ato Habtamu has other two children (other than Ayantu). This will does not give to Ayantu the pickup car, in addition to what she partakes with her siblings. Rather, the will shall be interpreted that the pickup car shall fall in the portion allocated to Ayantu. The children of Ato Habtamuhave equal portions in the successions as there are no other dispositions in the will. Other children, since they are universal legatees, do not know what a specific property they are going to receive. Only Ayantuknows that the car falls in her portion.
A problem may arise here. That is, the value of the ISUZU car may be greater than other portion of the inheritance. If Ayantu is in need of the pickup car, she can set off the excess amount by paying sums of money to the co–heirs. For instance, if the total hereditary estate is about Birr 600, 000, including the pickup car, each of the co–heirs is entitled to receive Birr 200,000. If the value of the car is Birr 225,000, Ayantu should equalize her share with others by paying them back Birr 25,000.
You should note here that the testator could give an exclusive right to one of his/her heirs, on a certain property, in addition to what such an heir shares with other co–heirs. However, if this is the intention of the testator, he/she should express it clearly.
Effects of universal legacies
When a person is in a position to receive a universal legacy, he/she becomes a universal legatee. The appointment of a universal legatee does not follow any special formality. That is, a public or holograph will that normally fulfills the formal requirements could appoint a universal legatee. No special will with special formalities is required to appoint a universal legatee (Art. 914).
When someone is appointed as a universal legatee, he/she is assimilated to an heir–at–law. When it is said that a universal legatee is assimilated to an heir–at–law, it means that a universal legatee who is a non–heir (such as a friend, a servant, a spiritual father, a spouse, etc.) shall be treated in all respects in relation to the succession in the same manner as the legal heirs of the testator. The rights and responsibilities of such universal legatees will be similar to that of the legal heir to the testator.
The testator may make his succession to depend on certain conditions. The conditions are of two types. In the words of the Code, they are suspensive and resolutive conditions. We also call suspensive conditions as condition precedent and resolutive conditions as condition subsequent.
Suspensive condition— In the case of suspensive condition or condition precedent, the legatee shall wait until a certain time lapses or until a certain circumstance occurs. Therefore, the legatee will not be entitled to receive the bequest until the fulfillment of the specified condition. For example, the testator may order a legacy in favor of Mahlet. However, Mahlet may be in a position to receive the property upon the expiry of five years and until that time, the property would remain in the hands of specifically designated persons. The testator may even say that, Mahlet shall receive the property when someone dies. Hence, the legatee shall be entitled to take the property upon death of that specified person.
Resolutive condition— Resolutive condition or condition subsequent is a situation where the legatee brings back what he received from the succession when a certain condition is fulfilled. That is, in the case of resolutive condition, the legatee is automatically entitled to receive the bequest, unlike the case of suspensive condition. For instance, the testator may order Brook to receive some property until a certain circumstance occurs. Brook returns the property upon the occurrence of the mentioned circumstance. For example, the testator may not be happy with the flirting of his daughter with Zelalem. (Zelalem is member of a gang of robbers). The testator may order a conditional legacy to stop his daughter from marrying such a person. He may say in his will that, “my daughter shall receive four cows so long as she does not marry Zelalem”. In this case, the testator’s daughter can enjoy the bequest until she decides to marry Zelalem. Whenever she marries Zelalem, she shall restitute what she received from the succession.
You may have understood from Art 917 that the testator may impose a condition of marrying or not marrying of a specific person. However, the testator has no right of imposing, in general terms, not marrying or not remarrying. The testator cannot even impose on the legatee a condition such as not marrying or not remarrying a person who belongs to a certain race, nationality, member of a religious group, etc.
All persons who have attained the marriageable age have a constitutionally guaranteed right to marry and found a family. The FDRE Constitution in Article 34 (1) states that:
“Men and Women without any distinction as to race, nation, nationality or religion, who have attained marriageable age defined by law, have the right to marry and found a family…”
The imposition of marrying or not marrying a specific person does not affect this constitutional right. Nevertheless, the condition that imposes, in general terms, not to marry or not to remarry infringes the rights of persons. However, the testator may impose a condition of not marrying or not remarrying (See the Amharic version of the Civil Code), by giving to the legatee a usufruct right on a certain property or by giving him/her a certain amount of pension. The condition of not to marry seems to affect the rights of individuals. Nevertheless, the condition of not to remarry is usually practiced. For instance, the testator may order his wife not to remarry by giving her a usufruct right on a certain property or by giving her a pension in the form of annuity or any other appropriate form.
Charge is the order of a testator against his/her heirs and/or legatees in which he/she binds them to take some responsibility or take care of one or more persons. However, the testator cannot bind the heirs and/or legatees to give or to do something to specified persons more than the value of the legacy.
The testator may order that Ato Chala would take his (the testator’s) taxicab whose value is 60,000 birr. The testator also orders that Ato Chala shall make a monthly payment to his old mother W/ro Wude 500 Birr. Ato Chala is obliged to make the payment to W/ro Wude up to the extent of the value of the taxicab. In case Ato Chala fails to pay the said amount, W/ro Wude has the right to claim payment. But W/ro Wude cannot demand the dissolution of the legacy made to Ato Chala unless the testator orders this clearly in his/her will.
For more details read Civil Code Articles 920 — 923
Substitutio vulgariswas very common in Roman wills. An alternative heir was appointed in the event that the person instituted as the primary heir failed to become the heir (e.g. because he/she died before the testator or refused the inheritance). According to the Ethiopian Civil Code, Substitutio vulgaris is the situation where the testator orders another person to take the legacy in cases where the appointed universal or singular legatee fails to appear and receive what the testator allocates to him/her. The causes for the disappearance of the appointed legatee could vary from case to case. (See Article 928).
The concept similar to entail existed in Roman law. It was also common in many parts of Europe. It is a restriction of inheritance to a limited class of descendants for at least several generations. It is mainly linked with real estate. The object of entail is to preserve large estates in land from the disintegration that is caused by equal inheritance by all the heirs and by the ordinary right of free alienation (disposal) of property interests. Many changes have been developed regarding entails in the law of successions. In some countries, (E.g. England) the law permits the holder of entailed property (either real or personal) to dispose of it bydeed; otherwise the entail persists. In the United States for the most part entails are either altogether prohibited or limited to a single generation.
In Ethiopia, the testator has the power to order that his/her heir and/or his/her legatee shall hand over the legacy to one or more persons after such heir and/or legatee has benefited with the legacy. The testator may order the heir and/or legatee to transfer the legacy (or even portion of it) to the specified person(s) upon the following conditions:
On the expiry of a certain period, for example, after 5 years from the opening of the succession;
Upon the death of the heir or the legatee; and,
On the accomplishment of a certain condition, for instance, when the testator's little daughter gets married.
Entail is not widely practiced in the life of the society. Therefore, instead of discussing it, in detail, the following important points will be provided on the rest of the articles dealing with entail.
Once the legacy is transferred into the hands of the holder entail, the holder entail needs to expect to have only a usufruct right on the legacy. Since he/she is not a true successor, the law does not vest him with powers of an owner of the property. Therefore, the holder entail cannot alienate (sell or donate) the property to third parties. Moreover, the holder should not have any attachment with such property for his/her debts (Art. 931 (1)).
Courts are generally empowered to order the alienation or transfer of a property or its attachment, if such order is justifiable. However, in no case can the court authorize the alienation or attachment of the property in the hands of the holder entail. Because, the holder entail is obliged to utilize the property by taking all the necessary care not to cause a serious damage to the property and finally hand it over to the true successor upon the opening of the substitution (Art 932).
The testator has the right to regulate only until the property is transferred to the person who is called to succeed. Once the property is transferred to the person who is called to succeed the testator loses the right to pass any order concerning the property (Art 934).
In the case where the holder entail refuses to take the legacy or if he/she loses capacity to succeed, for instance, by being unworthy, the person called to succeed shall be called to take the legacy. However, the testator may vary such by an otherwise order (Art 935).
With respect to the contents of Art 936, there is lack of clarity. Moreover, there is a discrepancy between the Amharic and English versions of Art 936(2). Generally, it seems that the law has allowed the holder entail to exercise a full right on the property if it is absolutely clear that the substitution cannot take place.
In the Ethiopian law of successions, the testator has wider rights to disinherit one or more of his/her heirs by the will he/she makes. His/her rights may even go to the extent of disinheriting all of his/her children. Disherison is an order passed by the testator to exclude his/her heirs from the succession. It usually serves as a means of punishment for the misbehavior of his/her heirs. Some people argue that giving powers to the testator to the extent of disinheriting his/her heirs is not proper. At present time, in many countries the power of the testator to disinherit his/her heirs has been reduced or there are many conditions to be fulfilled to disinherit, especially a child. In many jurisdictions in the US, the powers of the testator to disinherit heirs, including children is still effective. The situation is different in most European jurisdictions. In Ethiopia, the law allows the testator to disinherit one or more of his/her heirs. It seems that the law considered that the testator’s only power as far as punishing disobedient children is disinheriting such children.
The testator may disinherit his/her heir either expressly or tacitly. Express disherison is a kind of disherison in which the testator excludes his/her heir from the succession in an explicit manner by stating clearly that he/she has disinherited the heir. The testator may disinherit all of his/her heirs (descendants and other heirs) expressly and appoint a universal legatee. For instance, Ato Wagaw may disinherit all his children and other heirs and he may appoint his friend Gosaye as a universal legatee. In such a case, Gosaye is called to receive the whole estate of Ato Wagaw without any contender. If the testator disinherits all his/her heirs and if he/she does not appoint someone as a universal legatee, there shall be no one to take his/her hereditary estate. In such circumstances, the law has devised a mechanism to enable the descendants of such disinherited heirs to take the property of the testator by way of representation (See Art 937).
Descendants can only be disinherited expressly. That is, no descendant may be disinherited tacitly. Moreover, the testator shall clearly state a justifiable reason why he/she has decided to disinherit his/her descendants. The law makes such imposition on the testator with the view to protect the interest of the descendants in succeeding their ascendants.
It is stated above that the testator must give justifiable reason(s) to disinherit one or more of his/her descendants. The law does not list down what things are justifiable and not justifiable. A justifiable reason is a subjective standard. It is believed that it should impress a reasonable person. It should be a reason that is sufficient to move the testator to the decision of disinheriting his/her descendant. The testator is expected to attribute some acts of the heir that have dissatisfied him/her. If the acts done by the heir were not illegal and/or not immoral, it would be difficult to the testator to give justifiable reasons.
The court has a power to examine and decide whether the reason given by the testator is justifiable or not. Although the court has the power to ascertain whether the reason given is justifiable or not, it cannot ascertain whether the given reason is true or false. Any statement that the testator gives is a true statement. Therefore, the heir cannot claim that the statement of the testator is untrue.
It is clear that the succession of the testator shall open after he/she is dead. A dead person cannot express anything and he/she cannot defend himself/herself if someone claims that the statement of the testator is false. Therefore, it is not possible to pass a decision by hearing only one party. Because of this, the law simply presumes that any reason given by the testator is a true statement. Moreover, the law trusts parents (or ascendants more than any other persons regarding matters relating to their children (or descendants). Therefore, the law takes for granted what has been stated by the testator as a true statement.
When the testator does not make someone beneficiary in his/her will, we say that he/she has tacitly disinherited such a person. However, this kind of tacit disinheritance does not work against descendant heirs. It works only against the heirs of second, third and fourth relationship. This is a mechanism of protection given by the law to the descendant heirs (See Art 939 (1) & (2)).
If the testator appoints someone as a universal legatee to receive the whole property, that does not imply the disherison of the children of the testator. In such a case, the universal legatee is called to succeed the testator as if he/she is one of his children (See Art 939 (3)).
W/ro Gelane has appointed in her last will Ato Bereket to take her hereditary estate as a whole. She has two children, Meskerem and Wodessa. She gave nothing to her children. As it is not allowed to tacitly disinherit children, Ato Wodessa cannot take the whole property of the succession. Instead, he would be considered as one of the children of W/ro Gelane and shall partake the property together with them.
Disinheriting heirs is a legally recognized power of the testator. However, if the law considers that the provisions of the will are defective with respect to any matter, and if the heirs impugn the defective provision, then the provision that disinherits the heirs shall be of no effect. For instance, assume that one of the provisions of a will contains an illicit provision. If this same will contains a provision that disinherits one or more of the heirs of the testator, only by challenging the illicit provisions, the disinherited heirs can get the invalidation of the disherison.
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.
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
- 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.
- 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.
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.
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.
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.
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.
- An interdicted person may not make a will after his interdiction.
- A will made by the interdicted person before his interdiction is valid.
- 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.
- 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.
- 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.
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.
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.
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.
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.
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)
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.
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 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.
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.
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.
In Ethiopia, most of the successions are intestate. When the deceased leaves no will at all or a court for various reasons invalidates the will made by him, it is said that the succession is intestate. In such a case, the distribution of the estate will be in accordance with the operation of the law rather than the volition of the deceased. In the intestate succession, the law follows “the presumed will of the deceased.” This type of succession is older and more historic than succession by will. (Read Articles 842 — 848 of the Civil Code)
Devolution according to the degree of relativity
The provisions of intestate succession are based on the idea that — had the deceased made a will he/she would have distributed his/her estate by following the degree of relationship. That is, he/she would give his/her estate to his/her closest relatives in the first place. In the second place, relatives who are situated at a relatively distant position when compared with the relatives of the first degree shall succeed the deceased. Accordingly, the law considers the children of a person are his/her closest relatives.
Children or other descendants are number one candidates to succeed a person (See Art. 842(1)). All children of the person who died intestate have equal rights in the succession irrespective of their age, sex, etc. differences. If one of the children of the deceased is a predeceased child, that is, if he/she died before the death of the deceased, he/she would lose his/her capacity to succeed, as discussed above. The reason is he did not fulfill one important requirement, which is surviving the deceased. Although a predeceased heir lost his/her capacity to succeed the deceased, his/her own descendants will represent him. Therefore, representation could be taken as an exception to the rule of survivorship.
A person who claims to have a right in a succession is expected to be alive at the time of death of the deceased. This is the requirement of survivorship. The idea is that an heir who did not survive the deceased should lose his/her right in the succession. That is, a predeceased heir has lost his/her capacity. However, his/her descendants, with the exclusion of all other heirs, shall represent a predeceased heir. As a rule a predeceased heir has no capacity to succeed the deceased. But his/her descendants can represent him/her. This situation makes representation an exceptional circumstance to the general rule.
If the deceased is not survived by his/her children or other descendants, the father and the mother of the deceased will be called to his/her succession. In the case where his/her descendants survive him/her, all other heirs of the deceased will be excluded from the succession according to the rules of the interstate succession. His/her father and his/her mother are in the second order in the queue of the relatives of the deceased. The father and mother of the deceased will take equal share of the whole estate of the deceased.
In the case where one of the parents has died before the deceased, such parent shall be represented by his/her children (or other descendants). Note that the children (first degree descendants) of the parents of the deceased are his/her brothers and sisters, of full or of half blood.
In the case where both parents have survived the deceased, half of the hereditary estate of the deceased goes to the father and the other half goes to the mother. This is based on the principle that heirs of the paternal line the maternal line shall have equal shares in the inheritance of the deceased, so long as they are at equal distance from the deceased. In the paternal line, we find the father of the deceased and his (the father’s) descendants. In the maternal line, we get the mother of the deceased and her descendants.
In a situation where the father predeceased the deceased and where descendants do not survive him, there is nobody to take the estate of the deceased in the paternal line at that level. In this case, the heirs of the maternal line take the whole estate of the deceased.
A person has four grandparents, two on the paternal line and two on the maternal line. If the deceased is survived by all of the four grandparents, half of the hereditary estate shall be devolved on the paternal grandparents and the rest half will go to the maternal grandparents. Each of them shall be entitled to one-fourth of the hereditary estate. If one of them predeceased the deceased and is survived by descendants, he/she will be represented by such descendants.
If a predeceased grandparent is not survived by descendants, his/her portion shall devolve upon the other grandparent of the same line. For instance, if the paternal grandfather predeceased the deceased and if he is not survived by descendants, the property that was destined to him or to his representatives will now be transferred to the paternal grandmother. In this circumstance, the maternal grandmother, instead of taking only one-fourth of the hereditary estate, she is entitled to receive half of the hereditary estate (if she is alive). If this paternal grandmother also predeceased the deceased, her own descendants will represent her. If her descendants do not survive her, there is nobody to receive the property on the paternal line of third relationship. Therefore, the whole hereditary estate will devolve upon the maternal grandparents. There are two maternal grandparents and each of them will be entitled to receive half of the hereditary estate.
A person has eight great-grandparents, four on the paternal line and the other four on the maternal line. The distribution of the estate follows the same pattern as that of the case of parents and grandparents.
Paterna paternis-materna maternis
Articles 842 to 848 describe the rule in which intestate succession is governed. That is, the closest relative of the deceased would succeed him/her. This rule has an exception. The exception is — although there are closer relatives of the deceased, a certain property may devolve upon far distant relatives. The law calls this exception as paterna paternis materna maternis.
The exceptional rule of paterna paternis materna maternis is designed to allocate an immovable property that is obtained by the deceased from one of the lines by way of donation or succession to the heirs of the line from which the property is obtained. For a better understanding, study the following example.
You might have understood from the reading of Art. 850, that the heir who is the closer relative of the deceased and should have succeeded the deceased, but lost his right as a result of paterna paternis materna maternis, will have a usufruct right on the immovable. A usufruct right is a right to use a property or to derive a fruit from that property. For instance, if the property is a house, a person with a usufruct right can either live in the house (a use right) or he/she can rent the house and collect the rental money (deriving fruit of the house). Hence, a person with a usufruct right cannot sell the house nor can he transfer it by donation. Therefore, Wro Haymi will have a usufruct right and she is not obliged to pay any compensation to heirs of the paternal line from which the immovable (house) is obtained (See Art. 850 (2)).
According to Art 851, to apply the rule paterna paternis materna maternis, there has to be an heir in the line from which the immovable property is obtained, if the immovable property is obtained. If the immovable property is acquired from the paternal line, there has to be an heir in that line. In case of absence of any heir in the paternal line, the immovable property shall devolve upon the maternal line. The converse is also true.
To apply the rule paterna paternis materna maternis, the following five conditions must all exist together. If one of them is missing, it cannot be applicable. The five conditions are:
$11. The deceased must die intestate. (The exceptional rule cannot be applied if there is a will)
$12. His/her own descendants must not survive the deceased. (If there are descendants, Art. 842 shall apply)
$13. The property must be an immovable one. (Art. 849 (1) & (2))
$14. The property must be acquired by the deceased from either paternal or maternal lines by way of succession or donation. (Art. 849 (1) & (2))
$15. There must be an heir in the line from which the property has originated. (Art. 851)
When there are no heirs of the deceased up to the 4th relationship, the property shall devolve on the State. This condition is usually said to be Escheat. Escheat is reversion of property to the state in the absence of legal heirs or claimants. The State takes the property of the deceased not by way of succession, but because such property has no one to claim it. Property which is bona vacantia (ownerless or vacant property) belongs to the State and it is via this principle that the Government is taking the property of the deceased that has no heir up to the 4th relationship. (See Article 852)
Representation and renunciation
It can be said that there two modes of succession, succeeding directly and succeeding through representation. Heirs who are closest to the deceased are called to succeed directly and personally. However, the persons who are to be called to succeed directly and personally might have died before the opening of the succession, by leaving descendants behind them. In such a case, the law allows such descendants to be called to the succession. Representation is an exception to the requirement of surviving the deceased. As a rule, the heir must survive the deceased. But this rule is excepted by representation. According to this exceptional rule of representation, the descendants of a predeceased heir can take part in the succession by taking the foot of the predeceased heir. When representation is effected it is per stripes, not per capita. That is, the descendants of the predeceased heir shall take what would be taken by the predeceased heir, had he/she been alive.
Ayantu died intestate and she left 90,000 Birr as a hereditary estate. She had three children, Brook, Ezana andMetti. Brookpredeceased Ayantu. Brook himself was survived by three children; Meron, Akalu and Mike. As Brook is survived by descendants, he shall be represented by them. Brook’s children would receive what would have been taken by Brook. That is, they shall be entitled to 30,000 Birr and each of them has an equal share in the succession. Ayantu’s grandchildren will only take proportionately among themselves the share that their deceased parent (Brook) would have taken if he were alive. This is a per stripes representation.
An heir who is a successor may not necessarily be willing to participate in the succession. In such a case, he could renounce the succession. Renunciation is a refusal to accept the succession. A person may renounce the succession for various reasons. If he/she is relatively in a better economic position, he may renounce the succession to the benefit of his co-heirs. The heir who has renounced the succession shall never be seen as the heir of the deceased. He/she has forfeited his/her right in the succession and hence he/she will not be represented by his/her descendants. The reason is the one who has no right in the succession shall not transfer to his/her descendants what he/she does not have. However, as it is prescribed in Art. 854(2), the person whose succession has been renounced may be represented. For better understanding of this provision, read the example below.
Zemzem’s mother W/ro Wude is a very rich woman. Zemzem has a daughter called Tenaye. Assume that Zemzem died onMeskerem 14th of 1999 E.C. Tenaye renounced Zemzem’s succession. Just a year after the death of Zemenay, W/ro Wude died. Now Tenaye can succeed W/ro Wude by representing her mother Zemzem.
(Tenaye renounced Zemzem’s succession)
With the same logic as renunciation, the heir who is declared unworthy cannot be represented by his/her descendants, as such heir has already lost his/her right to succeed the deceased, he/she has nothing to transfer to his/her descendants. To succeed the deceased through representation, there has to be bond of legal relationship between the deceased and the one who claims to succeed the deceased. (See Arts 855 & 856) For instance, assume that Ato Omod adopts a child by name Neguse. Omod’s father Ujulu opposed the adoption made by his son. Negusu cannot succeed Ujulu by representing his adoptive father, Omod.