Bahir Dar University Law Faculty Distance Program

BAHIR DAR UNIVERSITY LAW FACULTY DISTANCE PROGRAM

LAW OF SUCCESSION

PREPARED BY ALI MOHAMED EDITORS:

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CONTENTS

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CHAPTER ONE - THE HISTORICAL DEVELOPMENT AND PURPOSE OF THE LAW OF SUCCESSION

...........................................................................

1 1.1 The Historical Development of the Law of succession........................................2 1.2 The purpose and objectives of the law of succession

......................................8

1.2.1 The purpose of the law of succession....................................................................8 1.2.2 The public policy considerations...........................................................................12 1.2.3 The Interdependence of the law of succession with other laws.............................14 1.3 The systems of succession in Ethiopia..................................................................17 CHAPTER TWO - THE DEVOLUTION OF SUCCESSION IN GENERAL....................... 33 2.1 Opening of succession and Things that make up succession...................................... 34 2.1.1 The opening of succession........................................................................................34 2.1.2 Things that make up succession............................................................................... 40 2.1.2.1 Pensions and Indemnities..................................................................................... 43 2.1.2.2 Lefe Insurance...................................................................................................... 45 2.2 The Capacity to Succeed the Deceased..................................................................... 58 2.2.1 General Introduction.............................................................................................. 59 2.2.2 The Surviving of the Heir to the Deceased............................................................ 63 2.2.2.1 Factual Existence................................................................................................ 63 2.2.2.2 Legal Existence................................................................................................... 64 2.2.2.3 Persons Dying Simultaneously........................................................................... 65 2.2.2.4 Rules Applicable to Legal Persons..................................................................... 67 2.2.2.5 Persons non-existent legally..............................................................................

68

2.2.3 Unworthiness of the Heir to succeed the Deceased.............................................. 69 2.2.3.1 Crimes that cause unworthiness......................................................................... 70 2.2.3.2 Other causes of unworthiness.............................................................................. 74 2.2.4 Pardon made by the Deceased................................................................................81 CHAPTER THREE – INTESTATE SUCCESSION IN ETHIOPIA...................84 3.1 General Introduction..................................................................................................84 3.1.1 Definition of Intestate succession and Its Essence.................................................85 3.1.2 Kinds of Intestate Succession.................................................................................86

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3.1.3 The bases of the Rules of Intestate succession .....................................................87 3.2 Rules of Intestate Succession in................................................................................89 3.2.1 Heirs in the first order.............................................................................................89 3.2.2 Heirs in the second order........................................................................................94 3.2.3 Heirs in third order................................................................................................. 101 3.2.4 Heirs in the Fourth order ......................................................................................102 3.3 The Rule of Paterna Patern’s and Materna Maternis ...............................................105 CHAPTER FOUR - TESTATE SUCCESSION IN ETHIOPIA..............................107 4.1 Definitions and Nature of will ..................................................................................108 4.1.1 Definitions of will...................................................................................................108 4.1.2 The features of will.................................................................................................112 4.1.3 Elements of will......................................................................................................116 4.1.3.1 The Inherent /Intrinsic/ Elements of will............................................................116 4.1.3.2 Formal /extrinsic/ Elements of will.....................................................................122 4.2 The Nature of Testamentary powers and its limits..................................................123 4.2.1 The Nature of Testamentary power.......................................................................124 4.2.2 Limits on Testamentary power..............................................................................128 4.2.2.1 Limits on the Disposition of property................................................................129 4.2.2.2 Limits on the power of Testamentary Disheirsion............................................133 4.3 Essential Conditions of the Validity of will...........................................................138 4.3.1 Capacity of the Testator........................................................................................139 4.3.1.1 Minority.............................................................................................................140 4.3.1.2 Mental Capacity..................................................................................................142 4.3.1.2.1 Notoriously Insane person...............................................................................144 4.3.1.2.2 Non-Notorious Insane person..........................................................................145 4.3.1.2.3 Judicially Interdicted persons.........................................................................148 4.3.2 Personally executed and Based on Testators Free ill.............................................149 4.3.2.1 Personally Executed by the Testator....................................................................149 4.3.2.2 A will executed Based on the free will of the Testator........................................... 150 4.3.3 Compliance with formal Requirements.................................................................151 4.3.3.1 General Introduction.............................................................................................151 4.3.3.2 Public will........................................................................................................153 4.3.3.3 Holograph will...................................................................................................154

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4.3.3.4 Oral will.............................................................................................................155 4.3.3.5 Lawfulness of will..............................................................................................155 4.4 The Content and Interpretation of will.....................................................................158 4.4.1 The Contents of will.............................................................................................158 4.4.1.1 Legacy by Universal Title.................................................................................159 4.4.1.2 Legacy by singular Title..................................................................................162 4.4.1.3 Conditional Legacies.....................................................................................165 4.4.1.3.1 Conditions and Motive...................................................................................166 4.4.1.3.2 Conditions Precedent (suspensive conditions..............................................167 4.4.1.3.3 Conditions Subsequent (Resolutive Conditions).........................................168 4.4.2 Interpretation of provisions of will...................................................................169 4.5 Revocation and Lapse of will............................................................................171 4.5.1 Revocation of will................................................................................................172 4.5.1.1 Express Revocation.........................................................................................174 4.5.1.2 Implied Revocation........................................................................................177 4.5.2 Lapse of will......................................................................................................181 CHAPTER FIVE - THE BENEFICIARY AND PROOF OF WILL...................184 5.1 General principles to take by will.........................................................................185 5.2 Who can be a Beneficiary will...........................................................................187 5.2.1 Legal Heirs (Heirs at-Law)..............................................................................188 5.2.2 Illegitimate Child..............................................................................................190 5.2.3 The Religion and Nationality of Beneficiary.................................................191 5.2.4 unworthy Beneficiary.....................................................................................193 5.3 Proof of will...................................................................................................196 CHAPTER SIX - LIOUIDATION AND ADMINISTRATION OF SUCCESSION.........................................................198 6.1

The meaning and essence of liquidation of succession ..............................199

6.2

The Appointment and Duties of the liquidator of Succession.......................204

6.2.1

The Appointment of the liquidator...............................................................204

6.2.1.1. Liquidator Designated by the will of the Deceased..............................

205

6.2.1.2. Liquidators designated by law..............................................................

208

6.2.1.3. Liquidators appointed by the court........................................................

209

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6.3

The Rights and Duties of the liquidator............................................................211

6.4

Liquidation of succession under Ethiopian law................................................214

6.4.1

Determination of persons entitled to succession................................................214

6.4.1.1. Provisional determination of persons entitled to succeed......................... 215 6.4.1.2. Final Determination of persons.................................................................. 221 6.4.2

Administration of succession ..........................................................................224

6.4.3.

The payment of debts of the succession............................................................229

6.4.3.1. The order of payment.................................................................................. 229 6.4.3.2. Funeral and Administration expense.......................................................... 230 6.4.3.3. Debts of the Deceased................................................................................. 232 6.4.3.4. Debts Relating to Maintenance....................................................................236 6.4.3.5. Payment of Legacy....................................................................................239

INTRODUCTION Death is one of the basic event of life which is out of the will and control of humanity. It is from time immemorial that man began to develop rules that are useful to control the devolution of property from the dead to the living one. The law of succession became one of the important components of normative rules which are essential to the life of ancient and present human society. It is why any effort made to know and study about the Law of Succession is more than worthy and important in the filed of law. The devolution of succession in Ethiopia has been effected based on different customary laws, religious norms and modern rules of 5

succession adopted by the Civil Code of Ethiopia. Thus, Chapter one of the Module is prepared to give a high light about the development and purpose of the rules of succession in general and the systems of succession in Ethiopia in particular. The second Chapter deals about general principles and rules of the Civil Code that govern the devolution of succession. While the third Chapter deals about the essence of the rules that governs intestate succession, Chapters four and five deals the essential features, and rules that governs testate succession in Ethiopia. The last Chapter i.e. Chapter Six gives high light about the essence and importance of the rules that govern the liquidation and administration of succession.

My focus in the preparation of the Module is to show the purpose and rationales of the rules of succession that govern different subjects. To achieve the intended objectives, I tried to define the concepts and compared the rules of the succession law of Ethiopia with the Laws of other countries. Most of the comparisons are made with that of Islamic law but it is not with out purpose. Because, the rules of succession enshrined under Islamic law have been one of the normative rules that are applicable to govern the succession of the Muslim population of Ethiopia. This will help the students to be aware of the basic difference and the existing

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similarities between the rules of succession adopted by the Civil Code and the succession rules of Sharia (Islamic law). There are no sufficient

practical cases attached with this

Module. Thus, students are advised to complement this by reading the cases that have been included in the Module that was prepared for their Diploma program mainly by Amharic. More over, I want the students to remind that they have to make further investigations and read other references to understand those areas of the subjects which are not the central focus of the Module at this very moment. Lastly, I want to use this opportunity to thank all those who contributed their part for the success of this distance program in general and in the preparation of this material in particular. I wish a successful completion of the course and the program for all students. Ali Mohammed Ali

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CHAPTER ONE THE HISTORICAL DEVELOPMENT AND PURPOSE OF THE LAW OF SUCCESSION

Dear my friend, this chapter is designed to discuss with you about;  The historical development of the law of succession  The purpose and aim of the law of succession  The

public policy concerns enshrined in the law of

succession 

The relationship of the law of succession with other private and public laws of the country

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1.1

The historical Development of the Law of Succession

Dear Student, This part of the paper is designed to share some ideas with you, which can answer partly the following questions. Thus, please try to make additional readings to have an in-depth knowledge on the subject under discussion  What does the term succession in the filed of law signify?  What are the factors that necessitate for the development of the system of succession in human Society?  Which system of succession was initially adopted by human society?  What factors forced the society to develop another system of succession different from its initial system? The term "succession" in the filed of law refers to the acquisitions of rights or property by inheritance. It is from time immemorial that human society began to control the disposition of the deceased person's property to the survivor. Thus, the rules that regulate the system of succession are as old as human civilization.

Reading the records of history clearly shows that communal ownership preceded individual ownership, since properties were owned by the family, clan or by the community in the initial 9

period of human society. Thus, there was little need for a system and rules of succession to the property in the primitive communal society mainly for two reasons.  Firstly, the family or the clan or the community continued to exist though one of its members or head of the family, head of the clan or head of the community passed away. Moreover, the rights and duties attached to the property of the family, the clan, or the community was regulated by the norms and customs that define the scope and organization of the family, the clan or the community.  Secondly, among the primitive communal society, private ownership was almost non existent. Besides, those minor belongings which were recognized as personal to the deceased were subjected to the absolute destruction in the funeral of the deceased on the wrong belief that they do honor for the spirit of the deceased. The main cause for the development of rules and a system of succession is, therefore, the development of private ownership of property along with the mortality nature of human being. Man is mortal but his property does not disappear with him. Certainly, private ownership creates some thing that the owner leaves some thing behind in this world. The deceased leaves all his property behind and society is interested to see such property being allotted to a new owner. Since the allotting of dead man's property to his surviving 10

relatives give rise to dispute, there comes the necessity for the emergence of rules of succession. Because of these, society developed some rules to make the allotment of dead man's property easily and peacefully to his survivors. The rules are not the same in the past and in the present. The rules of allotment were defined by mere traditions and customs in the primitive and traditional society. The members of the society follow the rules of customary succession for no other reason than respecting super natural power, dead man's spirit and societal exclusion and punishment. On the other hand, the rules of succession in the modern society are well formulated and detailed laws backed by governmental sanction. The law of succession in the modern society provides mainly two modes of transferring of the deceased property to his survivor. i.e.  The transfer of the estate of the deceased may be made by the operation of the fixed rules of inheritance called intestate succession. The rules of intestate succession regulate how the estate of the deceased devolves to his families and relatives based consanguinity relationship existed between the deceased and his survivor.  The transfer of the estate of the deceased may be effected in accordance with the will of the deceased called testate succession. The rules of testate succession are designed to give 11

effect for the declaration made by deceased with the intention to have effect after his death. As a matter of fact, the rules of intestate succession are very much older than testate succession. The system and rules of intestate succession was the first and initial system of succession that human society ever adopted to transfer the property of the deceased to his survivors. Accordingly, testate succession did not get great practical importance in the early system of succession. The main reason for the development of testate succession may be explained by the existence of unsolved sharp conflict between the real wish of the deceased and undeveloped rules of intestate succession. This is to mean, the fixed rules of inheritance (the law of decedent) that was adopted by ancient societies did not satisfied the inherent and natural feeling of man about the devolution of his property after his death. For example: The fixed rules of Roman law of succession allow the unemancipated children of the deceased to take part in the succession. It excludes the emancipated children of the deceased from taking part in their parent succession. The rules also allowed more remote relatives of the deceased to succeed in the absence of unemancipated children of the deceased.

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 The inheritance rules of England used to give a right to the remote heir of a male line and excluded a much nearer relative of female line. Half brothers of the deceased were also denied to succeed their brother. Naturally, people were not interested by the exclusion of their children and their near relative simply because they are emancipated or they are feminine. Thus, strong pressure to secure a means of transferring property from the dead to the survivor other than the rules intestate succession was raised. This strong pressure came up with the recognition of the right to dispose property by will (testate succession). Thus, it is possible to say, the disposition of property by will has got its birth as the result of the incapability of rules of intestate succession to satisfy the feeling and wishes of the people as to the devolution of their estate after their death .To this effect many systems of law go far to develop a system of succession that accommodate the wish of the deceased that goes beyond the fixed rule of inheritance. However, nation states did not set a side totally the rules of intestate succession. On the contrary, as a matter of public policy the modern law of succession in many jurisdictions have;  the rules that regulate intestate succession, and  the rules that regulate testate succession, and

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 The rules that govern the transfer of the deceased property to his survivor partially intestate and partially testate.

Questions 1

What is the difference between testate and intestate succession?

2.

Is it important to limit right of a person to control his succession by his will? Why?

3.

The development

of

private ownership

became an

immediate and substantial cause for the emergency of rules of succession? Do you agree by this point? Why? 4. What is the real cause for the emergence of rules of testate succession in human society? 5. Is it true to say, the modern rules of succession adopted in the Civil Code of Ethiopia have rules that govern intestate and testate succession? Why? 6. Are the rules of succession adopted by Ethiopian civil code allowed the succession of the deceased to be partially intestate and partially testate? Why?

1.2

The Purpose and Objectives of the Law of Succession. 14

Dear my friend,  What is the general purpose of the law of succession?  Is it true to say that each and every part and provisions of the law of succession has its own specific purpose? Why?  Is there any major public policy consideration that has to be taken in legislating, interpreting and enforcing the law of succession? Why? 

Do you think that the law of succession has close interdependence and relationship with other laws of the country, i.e. the constitution, family law, law of property, law of contract, patent laws, penal laws and other legislation of the country?

1.2.1 The Purpose of the Law of Succession There is a subject called "the law of succession "in public international law that deals with the means and method of transferring the right and labiality of a State to the successor of a new Sovereign. The law of succession on the other hand, is an essential component of the domestic laws of a country which can be enacted or developed through the law making process of each jurisdiction. It is clear that the domestic laws of any country are mainly divided in to two category i.e. private laws and public laws. The law of succession being a part of domestic laws fails under the category of private laws. Generally, the whole purpose of private 15

laws is to achieve a corrective justice and to set things right in so far as possible, in the relationship between two private parties. It is true, the law of property, being part of private law, governs the associated rights and obligations regarding various forms of ownership of property while the owner is alive. However, no special field of law deals with the devolution of the property of the deceased to his survivor other than the law of succession. The law of succession covers how property is passed from the dead to the living person. Therefore, the law of succession in every jurisdiction mainly focuses in administering how property is passed along from one generation to the other via the will of the deceased or any other scheme determined by the state. It is clear that the focus of the rule of succession is to govern the means and method of transferring the property of each and every dead person to the living one. However, by governing each private transaction, the law of succession in effect governs the means and method of passing the property from one generation to the other.

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The central aim of the law of succession is, therefore, to make effective transfer of property from one generation to the other, while the estate of the deceased retains its utility, economic and ecstatic value, and along with the rights and privileges of the deceased. Thus, it is not wrong to conclude that the ultimate and central purpose of having the law of succession is to pass the property from one generation to the other in a peaceful, fair, efficient and effective manner. Besides, it is the basic objective of the law of succession to prevent the deceased's property from unlawful merger with the property others, and to protect any form of misuse, damage or harm until it is transferred to the new owner. These being the general purpose of the law of succession in many jurisdictions, each and every part of the law of succession and its provision there of, has their own specific purpose to serve. For example,  The rules and provisions of intestate succession governs how the inheritance of the deceased can be administered based on the rules. It put hierarchy of the relatives of the deceased to be called for his succession in order. It also defines those who are excluded from taking part in the succession of the deceased by the operation of the law. This part of the law of succession try to govern the respective share of heirs from the succession of the deceased and other related critical issues.

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 The rules and provisions of testate succession also defines what instrument constitute and considered as the last wish of the deceased, the means and method of leaving a valid will, and the means and method of revoking it . The rules also define the means and mode of proving wills. It governs the enforcement and interpretation of the will of the deceased and such other issues which are the subject matter of testate succession.  The same is true to the part of the law of succession that deals with

the

administration

of

succession,

liquidation

of

succession, partition of succession and any other rule that deal with succession. Thus, it is important to understand the general purpose of the law of succession and the specific purpose to be served by each part of the law of succession and its provisions thereof, in the process of interpreting and enforcing the rules of succession in our daily practical life. Hence, the rules of succession should be enforced and interpreted in a way it can play its role towards the achievement of the general purpose, with due consideration of its specific purpose that has to be served by that very provision. Therefore, we have always to search to get the intended result which the legislators think of to achieve by adopting the general and specific rules.

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This actually needs positive (constructive) and contextual interpretation of the rules of succession which mainly can be achieved by having an in-depth understanding of the general purpose of the law of succession and the rational behind adopting each provisions.

1.2.2 The Public Policy Considerations Naturally, there is always a public policy consideration in legislating, interpreting and enforcing any piece of legislations. The law of succession, being part and parcel of the national laws, can never be an exception to this principle. In fact, each and every rules of succession were formulated and adopted by taking in to account the public interest and policy consideration on that specific subject. There is basic public policy taken into account during the legislation process of the law of succession. Moreover, the rules of succession should be enforced and interpreted by taking in to account not only the policy that existed during its enactment but also by giving due attention to the public policy that operate at the time of its enforcement. For instance, the public policy which was operational about the ownership of land during the enactment of the rules of succession enshrined in the Civil Code of Ethiopia is totally different from the existing Constitutional principle and policy of the government. 19

In such a case, it is mandatory to interpret and enforce the provisions of the Civil Code in line with the Constitutional principles and the current public policy concern. Thus, a close look deep in to the provisions of the Civil Code discloses a number of public policy considerations that has been taken in to account in the adoption of the law of succession. The law of succession has the following public policy concern; 

Protecting public morality, law and order in the administration, liquidation and partition of the estate of the deceased

 Preventing the discrimination of heirs

based on sex,

religion, and any other reason  Deterring offensive behavior of the heir against the deceased or his families and relatives by putting strict civil sanction on their capacity to succeed,  Set up a means to support the incapable and helpless dependants of the deceased from his estate by adopting rules that govern maintenance claim from the estate of the deceased  Protecting the right and interests of the creditors of the deceased 

Making practical and effective the last wish of the deceased expressed in his will.

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This public policy concern that was taken in to account in the enactment of the law, should be seriously evaluated in light of the existing principles and policies prevailing in the country. Hence, the rules of succession should be interpreted in light with the existing constitutional principles and prevailing public policy that has an impact on the subject matter under discussion.

1.2.3 The Interdependence of the Law of Succession with Other Laws Even though, the law of succession is a special kind of law that govern the transfer of the deceased's property to the survivor, it does not operate in the nut shell. The law of succession starts to operate at the moment when the person passed away from this world. However, the rules of succession has to be interpreted and enforced by taking in to account the relationship it has with other public and private laws of the country The

rules of

succession

have interdependence with

the

constitution of the country in one form or another. It has its roots in the penal law of the country and outcome of the proceedings of the criminal charge in determining the unworthiness of the heir to succeed the deceased. More over, the basis for the rule of intestate succession, i.e. the consanguinity relationship between persons that has a legal effect is defined by the family laws. 21

The law of property defines and regulates various relationships, duties and rights of the owner of the property, the possessor or the holder. It deals the duties and rights which are important to determine the rights and duties of the deceased that can be transferred to his heirs. The law of succession has also a strong connection with the law of contract and obligation in dealing the transferable contractual right of the deceased and the rights of the creditors of the deceased against his estate. The laws also define and govern the relationship of the creditors of the deceased with that of his heir before and after the closer of succession. To conclude, the law of succession in every jurisdiction has a very critical important purpose to serve. This part of law is an essential component of domestic private laws that deal with how property can pass from one generation to the other without being damaged, destroyed or lost its utility, economic and esthetic value. Moreover, the law of succession operates in a unique and difficult circumstance because it can never be invoked while the owner of the property is alive. The law of succession came in to effect at the moment when the owner of the property ceased to live. The law of succession came to force at the moment when the owner of the property has slept forever.

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This means the law of succession is interpreted and implemented in a situation where there is no any little opportunity of knowing the truth of the fact by asking the owner of the property that became the subject of dispute after his death. Because of all these factors, it is important to enforce the law by taking in to account the previous and current public policy consideration to be dealt by the law of succession, and by taking in to account the formal and inherent relationship and connection of the law of succession has with other private laws and public laws of the country.

Question 1.

What is the general purpose of the law of succession adopted by the Civil Code of Ethiopia?

2.

What kind of public policy considerations has been taken when the law maker adopted Art.838 of the civil code of Ethiopia?

3.

"The public policy concern that was taken in to account in the enactment of the law, should be seriously evaluated in light of the existing principles and polices prevailed in the country. Thus, the rules of succession should be interpreted in light with the existing constitutional principles and prevailing public polices that has an impact on the law of succession". Do you agree with this idea? Why? Why not? 23

4.

Do you think that the public policy operating at the enactment of the law of succession of Ethiopia about the ownership and use of land is similar to the public policy operating today in the country? Why?

5.

What effect Art.40 of the Constitution of Federal Democratic Republic Ethiopia has on the rules of succession?

6.

Try to identify the rules enshrined in the Law of Persons, the laws of Family, law of Contract that have direct relevance in the interpretation and enforcement of the Law of Succession?

1.3 The Systems of Succession in Ethiopia Dear my friend,  Are there different and multiple systems of succession in Ethiopia?  Is there any form of difference and contradiction of different rules and norms that governs succession in the country?  What are the measures that have been taken by the constitution of federal democratic republic of Ethiopia to maintain the multiple systems of succession existed in the country? 24

 What are the existing practical difficulties that we are facing in administering the succession of the deceased by the operation of different rules of succession? Ethiopia have been inhibited by different Nations, Nationalities and Peoples. The nation, nationalities and people have their own culture, tradition and common belief. Naturally, the culture, tradition and belief of each nation, nationality, people or even a community living within it has influenced the system of succession in the society. Because of these, the succession of a deceased person to the survivor has been enforced based on the traditional norms and customary laws of each community. Thus, one can not find a single and uniform system of succession which is effective through out the country. Rather, multiple and different systems of succession have been existing in Ethiopia long before the adoption of the modern rules of succession in the civil code. The then legislature enacted the civil code with a clear intention to avoid or terminate the existence of different and multiple systems of succession in the country and tried to establish one and uniform system of succession exclusively governed by the provisions of the Civil Code. This attempt of the legislature that was adopted in the civil code in 1960 can be inferred form Article 3347 sub Article 1 of the Civil Code.

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By this provision the legislator declared its intention and order to replace and repeal all rules whether written or customary laws that govern matters provided in the civil code before the adoption of the civil code. Succession is one of the subject that has been governed by the tradition and customary laws of each community before the option of the civil code of Ethiopia. Art. 3347(1) clearly repealed those customary laws that regulate succession in each community and formally replaced it by the rules of succession enshrined in the civil code. However, though the customary laws of different nations, nationalities, peoples and communities were formally repealed by the Civil Code, succession in Ethiopia has been effected based on different customs and traditional rules even after the adoption of the civil code for more than one reason. Firstly, the rules of succession enshrined in the Civil Code have not been enforced through out the country. Thus, Article 3347 (1) of the Civil Code remains being a formal legal declaration that has no practical importance in the life of the Society. Different nations, nationalities, people's and communities continued to regulate and govern the succession of the deceased in accordance with their own customary laws and actually without referring to the provisions of the Civil Code.

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Thus, the rules of succession enshrined in the Civil Code have got practical importance and enforceability in effecting the succession of the deceased person who live in urban areas and in the northern and central part of the country. The provisions of the Civil Code were rarely applied to the succession of the people's living in the remotest areas of the country. In spite of the fact that the law maker tried to establish one and uniform system of succession governed by the provisions of the civil code, practically succession in Ethiopia has been regulated by different and multiple rules of succession that has got acceptance by the tradition and customs of each community before and after the adoption of the civil code. Secondly, the succession of the deceased in the country continued to be governed by the norms and rules of religion even after the adoption of the civil code. It is clear, Article 3347 (1) was incorporated in the civil code in order to repeal and replace those religious norms that govern the subject covered by the provisions of the civil code. However, irrespective of this clear provision, succession in Ethiopia has been governed by religious norms and rules before and after the adoption of the civil code. Especially, succession within the Muslim population of Ethiopia has been mainly governed in accordance with the rules of sharia rather than the rules of the civil code. 27

To enforce the rules of sharia and adjudicate cases of succession within the Muslim population of Ethiopia, the government established sharia courts that has three layers called, the Naiba, the Kadi and the Supreme Sharia Court under Proclamation No 62/1936. These Sharia Courts continued to adjudicate cases of succession based on the rules of sharia when ever the deceased is a Muslim even after the adoption of the civil code of Ethiopia. It is because of the above practical challenges and critical factors, the attempt made by the emperor and his legislature to establish one and uniform system of succession governed by the provisions of the civil code end up with a complete failure. Thus, succession in Ethiopia continued to be effected by the operation of multiple systems and rules of succession that are different one from the other. Thus, one can conclude that succession in Ethiopia has been effected;  Based on the customary laws of each nations, nationalities, peoples and even communities both before and after the enactment of the Civil Code of Ethiopia.  Based on the underlined rules of religion for example the rules of "Fetha Negest" were applicable among Orthodox Christian population in the medieval period and based on the rules of sharia within the Muslim population before and after the adoption of the Civil Code. 28

 Based on the provisions of the Civil Code mostly in urban areas, and within communities living in the northern and central part of the country. Succession in Ethiopia has been governed by multiple systems and rules of succession which are different one from the other by their substance and by their very source and nature. Accordingly, succession in Ethiopia may be effected either by the operation of the customary laws of each community, or according to the rules of sharia when the deceased is a Muslim or pursuant to the provisions of the Civil Code. The existence and effectiveness of such different rules in governing the same subject matter i.e. the succession of the deceased, gives rise to a number of uncompromised issues and conflict during their enforcement. It is not easy to sort out and show in this paper the existing difference and contradiction between the provisions of the Civil Code and the divergent customary laws of each community that govern succession. The best way to understand this issue is that students have to evaluate whether the customary laws that governs the succession of the deceased enforced by the community in which they are living has any sort of contradiction with the provisions of the civil code or not.

29

However, the difference between the rules of succession enshrined in the civil code and in the sharia inspires interest because of the existing practical importance. Besides, both the Civil Code and Sharia have been interpreted and enforced by courts that have been established by the government. In fact the Question of jurisdiction, enforceability of judgment and other complicated difficulties has been evident in adjudicating cases of succession that involve a Muslim and non Muslim heirs of the deceased in this country. This is because there is an underlying policy difference between the provisions of the civil code and Sharia in governing succession. The following points will make the students to have a clear understanding on the basic substantive difference between Sharia and the provisions of the Civil Code of Ethiopia.  Ethiopian law makes no distinction between legitimate and illegitimate children for the purpose of succession. Pursuant to Article 837 of the Civil Code illegitimacy of a child may not affect in any manner his right to take part in the succession his father. But Islamic law (Sharia) denies any form of legal connection between the father and the child borne out of marriage. Thus, Sharia excludes the illegitimate child participating in the succession of his father and vice-versa. Because, in the eyes of Islamic law (Sharia) a person and his offspring borne out of marriage are not "father" and "child" for the purpose of succession. 30

 The difference in religion between the heir and the deceased does not impair the right of the heir in the succession of the deceased under Ethiopian Civil Code. On the contrary, the difference in religion is one of the impediments of succession under Islamic law. This is because the rules of inheritance stated in the verses of holy Quran are designed to distribute between the surviving communities of Muslim. Thus, non Muslim is not allowed to succeed a Muslim.  Women have equal right to succeed the deceased and even they have the right to take an equal share with male heirs under Ethiopian law. No distinction is allowed based of sex in Ethiopian law of succession. However, the Sharia (Islamic law) entitled for women heirs small share from the estate of the deceased. Women are allowed to take one third from the succession while male heirs are allowed to take two third of the deceased's estate.  Ethiopian law of succession adopted by Civil Code did not impose any limitation on the amount of the property that can be disposed by the will of the deceased. The person has the right to dispose the whole of his property by will. Islamic law, on the other hand, imposes limit which is disposable by will. According to Sharia, a person may not dispose over one third of his property by will. Islamic law always preserve the remaining two third for the legal heirs. 31

 Under succession rules of the Civil Code, a person has the right to disinherit his legal heirs. The disinheritance may be made either expressly or impliedly. The rules of inheritance stated in the holy Qura'n are mandatory rules. Thus a Muslim has no such power of disinheriting one of his heirs by his will.  The wife is not allowed to succeed her husband, and the husband is not allowed to succeed his wife under the provisions of the Civil Code. Islamic law, on the other hand, entitles for the wife her share from the estate of her deceased husband. The above mentioned facts are not the only differences between the provisions of Civil Code and the rules of Islamic law. What is more important is to understand the existence and enforceability of these two laws side by side to govern succession. Naturally this has been the causes of dispute and conflict. For example, a Muslim may have a child from and out of marriage. In such a case the child borne out of marriage will go to the ordinary courts and invoke the provisions of the Civil Code to succeed his father. On the other hand, the child born in marriage will ask the Sharia Court to approve his exclusive right to succeed his father in accordance with the rules of Sharia. The same is true when a Muslim disposes the whole of property by will or disinherits his legal heirs pursuant to the provisions of the civil code. 32

The beneficiaries of will may institute their action to the civil Courts claiming their entitlement from the will of the deceased pursuant to the provisions of the civil code. While the other Muslim heirs may bring the suit to the Sharia courts seeking the annulment of disposition made by the testator beyond which sharia permits to him. In the case of the disinheritance, the heirs may ask the Sharia Courts to declare the disinheritance ineffective because of its inconformity with the rules Sharia. Thus, the non - Muslim heirs go to the Civil Court seeking the inforceability of the disheirsion made by the deceased. Similarly, female heirs of the deceased may go to the civil court and invoke the provisions of the civil code, while the male heirs will ask sharia courts to enforce the rules of sharia distributing the succession of the deceased. The conflict that have been existed between the Sharia and the provisions of the Civil Code, is not such apparent, rather it remains being practical. The existing difference between the two laws is basic. This pragmatic problem became a cause of dispute not only among the parties, but also some time between the Civil Courts and Sharia Courts that have tried cases involving an issue of succession.

33

This is because; the two courts have been existed side by side in Ethiopia rendering different and contradictory decision. The decisions are completely different both in their substance and in effect. Thus, attempts have been made to resolve this critical problem after the adoption of the civil code. There was not such fundamental solution to the problem, rather the administrative measures taken by the emperor or even by Provisional Military Administrative Council (PMAC) was done to cool down the boiled water, especially it was directed to give temporary answer to the questions by the Muslim population. This critical problem has got due attention by the Transitional Government, and

then

by the

FDRE

government. The

government tried to resolve the problem by putting a basic Constitutional principle under Article 34 Sub Article 5 of the constitution. According to this provision any dispute relating to personal and family laws may be adjudicated in accordance with religious or customary laws provided that all parties to the dispute give their consent for it. By the operation of this constitutional provision, cases involving an issue of succession can only be adjudicated in accordance with the rules of sharia, by sharia courts, if and only if both parties agree to accept the jurisdiction of the sharia court to adjudicate the case, by interpreting and enforcing the rules of Sharia. 34

By

adopting

this

principle

the

Constitution

made

the

enforceability of the provisions of the Civil Code and the Sharia to be determined by the consent of the parties i.e. if the parties agree the case to be adjudicated on the basis of religious or customary laws, the provisions of the Civil Code are excluded from being applied and enforced on that specific case. On the other hand, if the parties under dispute did not agree on the adjudication of the case based on religious or customary laws, immediately, the case will be adjudicated based on the provisions of the Civil Code. Thus, the constitution gives the power to choose which rules of inheritance can be applicable to adjudicate the case for the respective parties involved in the dispute. However, even though the Constitution put such basic principle, the means and method of expressing their consent to be adjudicated by religious or customary laws are not clear and need further clarification by legislation. Moreover, whether non appearance to religious or customary court should be taken as an objection or acceptance of the adjudication invites academic debate and causes practical problem to make ruling on the issue. Because of this fact, the legislator tried to define those particulars by legislation. Thus, the Federal House of Representatives enacted a Proclamation No 188/2000. This is a proclamation which was enacted to strengthen, the Federal Sharia Courts. 35

According to this proclamation, Federal Sharia courts will have the power to adjudicate cases involving succession.  First, if the deceased was a Muslim at the time of his death ,and 

Second, if both parties to the dispute give their consent about the adjudication of the case based on the rules of Sharia.

What is more, the proclamation has Provisions that determined the enforceability of the Civil Procedure Code of Ethiopia by the Sharia Courts in the adjudication process. The Proclamation has also provisions that govern how the parties under dispute can give their consent to be ruled by the Sharia Courts under Article 5(1). According to this provision, parties to the dispute have the duty to appear and express his objection or acceptance to be ruled by Sharia courts. Consequently, if a party who is properly served the summon of Sharia Court did not appear and express his objection or acceptance to the registrar of the court then it will be taken as if he has no objection to be ruled by sharia court and the case will be seen in the his absence. The Proclamation is an outcome of the attempt made by the house of Representative to resolve the practical problem that lived in the country for about half a century.

36

However, proclamation no 185/92 did not exhaustively addressed those critical exhaustively addressed those critical and practical problems that emanated form the existence of different and multiple system of succession in the country for example:1.One of the bases for the jurisdiction of the Sharia Court to adjudicate a case involving the succession of the deceased is the kind of religion followed by the person at the time of his death. That is Sharia Courts can only entertain the succession of a person if and only if he is a Muslim at the time of his death. How ever, a Muslim person may have non Muslim descendents or ascendants. Thus, should non Muslim heirs of the deceased appear to the Sharia Court to express their objection of the adjudication of the case by the Sharia Court based on Sharia? 2. The non Muslim heirs made clear their intention not to be bound by Islamic law from the very beginning by becoming the follower of another religion which is different from Islam. So, should they appear to Sharia Court and present their objection according to the form attached with the Proclamation? 3. Should the religion of the heirs be taken in to account to determine the jurisdiction of sharia court? 4.Is it proper to consider and assume the non appearance of the party to the Sharia Court as an acceptance of its jurisdiction to adjudicate the case according to Sharia? 37

5. What are the reasons for the legislature for not presuming the non appearance of the party as an objection to be ruled by sharia court? 6.What would be the effect of none following the format attached with the Proclamation in expressing an objection? 7.What if a person clearly objects the jurisdiction of sharia court but he did not follow the form attached with the proclamation? 8.What if the plaintiff did not properly served the notice of the court to the defendant but presented a false declaration to the Sharia Court that he properly served it? In such a case the sharia court started to entertain the case by considering that the defendant has no any objection. Does this not obliged the defendant to be ruled by Sharia Court without his knowledge and consent ? 9.What if the person appear later and disclose for the sharia court that he was not properly served the summon of the court by the plaintiff and present his objection to the jurisdiction of the court and the sharia court made ruling in favor of the plaintiff? 10.What will be the effect if the sharia court entertained the case irrespective of the fact that one of the parties objects its jurisdiction?

38

This and other issues which are not raised in this paper became critical problems in enforcing the Proclamation and in protecting the constitutionally protected rights. 11.

Do you think that Art.34 (5) of the constitution solve the

whole problem arising from the effectiveness of customary, religious and formal law in dealing the issue of succession in Ethiopia?

39

CHAPTER TWO THE DEVOLUTION OF SUCCESION IN GENERAL Dear distance student; This chapter is designed to deal the general provisions of the civil code that regulate the system of succession. More specifically, the chapter is devoted to highlight about,  The nature, essence and importance of the general provisions of the succession law of Ethiopia. Thus, the chapter discusses the following points;  The general rules of succession that govern the opening of the succession of the deceased.  General rules that determine things that make up the inheritance of the deceased under Ethiopian law.  The general requirements set by the law to succeed the deceased.  The existing problems in interpreting and enforcing the general provision of the civil code in the practical environment.

40

2.1 Opening of Succession and Things that Make up Succession. Dear my distance friend  What is the meaning and essence of the concept called "opening of succession"?  What is the specific nature and content of the rules that govern the opening of succession in Ethiopia?  What are the things which make up the inheritance of the deceased? 

What are those things which are not part of the inheritance of the deceased?

 Is there any problem manifested in the provisions of the civil code in defining those things which make up the inheritance of the deceased?  What kind of interdependence the provision of the Civil Code that define things that make up inheritance has with the provisions of the Commercial Code of Ethiopia?

2.1.1.

Opening of Succession

Human beings are endowed with rights and basic freedoms simply because they are born human. However, human being is the subject of rights starting from its birth to its death under the general principle of the law. Where the person dies, he ceased to be the subject of rights and duties instantly. Thus, the law of succession has an interest to protect the estate of the deceased from the moment he dies until it is transferred to the new owner. 41

The concept called "opening of succession" is used to refer the process where by the law of the country started to govern the administration of succession and the transfer of the deceased estate to the survival. This very concept has been enshrined under Article 826 sub Article 1 of the civil code. According to this provision the succession of a deceased person shall be opened at the place where he had his principal residence at the time of his death. Ethiopian law protects the estate of deceased and began to govern the administration of succession starting from the hour, minute and second of the death of the deceased. The law does not give any kind of time gap between the death of the person and the opening of his succession. This is because his succession opens at the time of his death pursuant to the provisions of Article 826 sub Article 1 of the Civil Code. To define the time when the succession of the person is opened per the provisions of the law has its own purpose. Firstly, it enables to determine who will be the successor of the deceased. Because, the succession of the person is opened at the moment the person dies. By the virtue of this provision, those heirs of the deceased who dies one second after the death of the deceased are considered as if they died after succeeding the deceased.

42

Thus, determining the time where the succession of a deceased will be opened by a clear provisions of the law, enables to identify among the heirs of the deceased

those that succeeded the

deceased. On the other hand, Article 826 (1) also defined the place where the succession of the deceased is opening. According to this provision the succession of the person is open in the place where he had his principal residence at the time of his death. The provision of the civil code makes clear the place where the succession of a deceased person should be opened for more than one purpose. The first is a person may have several residences pursuant to Article 177 (1) of the Civil Code. In such a case, the place where the succession of the deceased shall open will be a point of dispute. Thus Article 826 (1) gives a solution by defining the place where the succession of a person shall be open. Secondly, by defining the place where the succession of a deceased should be opened, the legislator tried to determine the court that has a local jurisdiction to entertain the cases related to the succession. Besides, this also helps to decide the law that is applicable to the succession of the deceased.

43

Article 826 (1) of the Civil Code is a mandatory provision of law that determine the time when and the place where the succession of a deceased person shall be open. The opening of the succession of the deceased is a critical step because while the right holder and the owner of the property dies, he is no more the subject of rights and duties in the eyes of the law. Thus, the transferable rights of the deceased and his property has been left behind by their former owner and yet, it is not transferred to the new one (successors of the deceased). There for, the law of succession started to take care of the property left behind by the deceased from the moment the owner ceases to hold rights and duties. The succession law of Ethiopia has never left any time gap between the death of the person and the opening of his succession. The concept called "opening of succession" of the deceased should not be confused with that of the issuance of certificate of heir by the court in accordance with the rules adopted from Arts 996 Art1002 of the Civil Code. The person may apply for the court that has jurisdiction to get a certificate that shows that he is the successor of the deceased by the operation of the law or by the will of the deceased after the succession of the deceased has been opened.

44

Thus, the time where the succession of the deceased is opened is not the time where his legal heirs and beneficiaries of will ask the court to issue a certificate that declare a person as a heir of the deceased and his respective share from the estate of the deceased. Rather, the succession of the deceased for the purpose of the law shall be open at the time when the person dies without giving any time gap. Here, it is important to note, that the opening of succession of the deceased is different from the claim presented by the heirs to get a certificate of heir ordered by the court. The succession of a deceased is opened at the moment when the person dies and he cease to be the subject of rights and duties. The succession of a person is opened by the operation of the law not by the declaration made by the court. When a person dies, the law instantly started to care about the right that was held and property that was owned by the deceased while he was alive. The law of succession considers the property that was owned by a dead person as a distinct estate and gives the proper protection and care until the succession is liquidated and the property transferred to the new owner. The opening of succession refers the time when and place where the law started to operate and started to administer the property that was left with out owner. Thus, the succession of the person opened at the moment he ceased to alive not even at the time his funeral was performed.

45

On the other hand, the opening of the succession of the deceased is different from the traditional practice made by his relatives discussing about the succession of the deceased after forty days pass from the death of the person. This is actually liquidation of succession which is governed by the rules enshrined in the Civil Code from Art. 942- Art 961. Generally, the succession law of Ethiopia did not leave any time gap between the death of the person and the opening of his succession. When a person dies, his succession is opened at the place of his principal residence. The rules that govern the opening of succession under Ethiopian law clearly define the time when and the place where the succession of a deceased person shall be open. The rule is amendatory rule of succession law which can be used as a basic principle in interpreting and enforcing other provisions of the law of succession. Especially Article 826 sub Article 1 of the Civil Code will be used as a basic reference.  In deciding whether an heir or a beneficiary of will has the capacity to succeed the deceased or not?  In identifying the court that has the jurisdiction to entertain cases involving the administration liquidation, partition of succession of the deceased and any other related issues.  To decide whether the succession of the deceased is opened in Ethiopia when the deceased is a foreigner.

46

Generally, the succession law of Ethiopia does not leave any single second after the death of the person. When the person dies, within that instance, for the purposes of the law, the succession of the deceased is opened in the place of his principal residence. By defining and determining the time when and the place where the succession of a deceased person shall open, Article 826 (1) of the Civil Code makes easy to understand and decide whether a person has the capacity to succeed and to identify the court that has a local jurisdiction to entertain cases involving the succession of the deceased. More over, when the deceased was a foreigner, Article 826 sub Article 1 is important to decide whether the succession of the deceased was opened in Ethiopia or in other country.

2.1.2.

Things that Make up a Succession

From the moment the person dies, his succession shall be open and the rules of succession operate. The next critical Question is to define which of the rights and obligations of the deceased can be transferred to the heirs and legatees of the deceased? Under the succession law of Ethiopia, at the moment the person dies, his succession is open and the rules of succession begin to operate to transfer the rights and liabilities of the deceased to his successors. However, identifying the rights and obligations of the deceased that can be transferred to the heirs and legatees of the deceased is not an easy task. 47

In other words, the question "which of the rights, obligations and properties of the deceased make up his succession?", is a critical issue that has been answered and dealt by the succession law of different countries in one form or the other. The succession law of some jurisdictions governs this important issue by listing down the right and duties of the deceased that makes up his succession and hence can be transferred for his successors. The succession law of Ethiopia on the other hand took a different approach in dealing things that make up the succession of the deceased. The rule that is enshrined in Article 826 (2) declares "The rights and obligations of the deceased which form the inheritance shall pass to his heirs and legatees, in accordance with the provisions of this title, unless such rights and obligations terminate by the death of the deceased" A closer look of the rules enshrined in this provision critically disclosed at least three important points. The first one is the rights and obligations of the deceased which can never be terminated by the death of the deceased. According to Article 826 (2) of the Civil Code,  All of rights and obligations of the deceased did not make up his succession. It is only those rights and duties of the deceased which can not be terminated by the death of a person that form his succession or inheritance. 48

The rule enshrined in the Civil Code of Ethiopia does not list out the rights and duties that make up the succession of the deceased. Rather, under the Ethiopian law of succession, those right and duties of the deceased that terminate by his death are not part and parcel of the succession and on the other hand those rights and duties not terminated by the death of the deceased form his succession. Can you think of rights and duties of the deceased that terminate by his death?  Those things that make up the succession, i.e. the rights and duties of the deceased not terminated by his death pass to his legal heirs and legatees. The rule makes clear that the rights and duties of the deceased that does not form his succession, i.e., his rights and obligations that terminate by his death will never transferred to his heirs and legatees. Thus, those rights that can be claimed and exercised only by the deceased (personal rights) and those obligations of that should be performed by the deceased personally (personal obligations of the deceased) are not a part of the succession of a person and can not pass to his successors. Generally, under the Ethiopian law of succession the rights and duties that are not terminated by the death of the deceased are part and parcel of his succession. However the law put an exception to this general principle. 49

The exceptions to this general principle are stated under the rules enshrined in Article 828 and Article 827 (1) of the Civil Code. 2.1.2.1. Pensions and Indemnities According to Article 828 of the civil code, pensions or indemnities payable to the relatives or to the spouses of the deceased as a consequence of his death shall not form part of succession. Pension or compensation payable because of the death of a person is not a right that terminates by the death of the deceased. On the contrary, either pension or any indemnities caused by death may be claimed by the relatives of the deceased after the death of a person. Though pension and indemnities payable to the relatives and spouse of the deceased are rights that can never be terminated by the death of the person, the law clearly declared that it is one of the things that did not make up the inheritance of the deceased. The public policy consideration that has been taken in such a case is that , pension that is payable to spouse, family and relative of a public servant were deposited four percent deducted from the public servant and six percent from contribution made by the government. The government has a social security and compensation law for the spouses and a relative of the public servant in case he was surprised by death. 50

Thus, any pension payable to the relatives and spouses of a public servant in accordance with pension laws does not form the part of the inheritance of the deceased. Thus, it can never be claimed by the heirs of the deceased and can never be divided and passed to his heirs. Pension is not the part of the succession of the deceased. When, the deceased was an employee of a private or government enterprise, and if

he died while he is performing his duty,

compensation will be paid for the spouse and relatives of the deceased by the employer in accordance with the law that regulate employer employee relationship and the contract of employment. Thus, the compensation paid by the employer to the spouse and relative of the deceased is not the part of inheritance. It will never be claimed by the heirs of the deceased as if it is a part of deceased's succession. Third, if the deceased died due to the fault of on other person or if some body is liable for his death in accordance with the provisions of the law of extra contractual liability, the spouse, his children and parents may claim compensation for the damage caused by his death in accordance with Art.2095(1) of the Civil Code. Thus any form of compensation paid by the person who is liable to compensate to the spouse, children and parents of the victim is not a part of his inheritance pursuant to Article 828 of the Civil Code.

51

There for, pensions and indemnities payable for the spouse and relatives of the deceased did not form his inheritance. There is a strict public policy consideration to exclude pensions and indemnities from the succession of the deceased. It is not part of things that makes up the succession and it can never be claimed by the heirs of the deceased as if it is part of the inheritance. 2.1.2.2. Life Insurance According to Article 827 (1) of the Civil Code, monies due in performance of the contract of life insurance to which the deceased was a party can be part of the inheritance.  Where the deceased has not determined the beneficiary or  The insurance is made to the benefit of the heirs of the deceased with out any other indication. According to this provision, monies due for the performance of life insurance to which the deceased is a party may be part of the succession of the deceased in two situations. The first one is when the deceased made the beneficiary of the insurance his heirs from the very beginning. In this case, the deceased should not indicate the names of his heirs as beneficiary. Rather, he has to declare that he entered a life insurance for the benefit of his heirs in general.

52

This is clearly stated in last paragraph of Article 827 (1) of the Civil Code which can be read "insurance made to the benefit of the heirs of the deceased without any other indication" A person can buy life insurance for the benefit of specific beneficiary. Thus, if the deceased mentioned the name of one or two heirs, this is considered as if the insurance was made for the benefit of his heirs. The beneficiaries are only those heirs whose name is mentioned in the contract pursuant to Article 702 Sub Art. 1of the Commercial Code of Ethiopia. In such a case, the insurance will not be a part of the inheritance and it can not be part of the succession. Insurance is deemed to be made make for the benefit of his heirs, when he mention the beneficiary in general terms like may heirs, my successors and the like. Thus, whenever the deceased made an insurance for the benefit of his heirs, with out making any other indication, then it becomes the part of the succession of the deceased, and those persons who have the capacity to succeed the deceased may collect the benefits. The second situation where monies due for the performance of life insurance can be part of the succession of the deceased according to Article 827 sub Article 1 of the Civil Code is where the deceased did not mention to whose benefit the insurance is made.

53

Whenever, the deceased has not determined the beneficiary in the insurance contract, then it is taken as part of the inheritance of the deceased. In other conditions, i.e. wherever the beneficiary determined or where he made his heirs the beneficiary by indicating their name then the money due shall not be part of the estate of the deceased. The civil code of Ethiopia makes this very clear under Article 827 (2) of the Civil Code by stating "in other cases, they shall not form part of the inheritance." However, though Article 827 address the Question when can the heirs of the deceased get the right to claim the life insurance made by the deceased as part of his estate, and in what condition money due for performance of life insurance is part of the succession of the deceased. The issue of life insurance may not be resolved by interpreting and enforcing Article 827 sub Article 1 of the Civil Code. Because, in order to solve issues involved life insurance,, the rules enshrined in civil code should be seen in light of the rules enshrined in the commercial code of Ethiopia that govern life insurance policies. Especially Article 827 (1) of the Civil Code should be seen and interpreted along with Article 701 (2) of the Commercial Code.

Article 701 (1) of the Commercial Code

declare that insurance in event of death can be made for a specified beneficiary.

54

This provision is harmonious with the provisions of Art 827Sub Art. 1 and 2 of the civil code, because wherever the deceased mentioned a particular beneficiary or the name of one of the heirs, then, the money due of life insurance is not part of the deceased estate. The problem is highly manifested interpreting and enforcing Art 827 (1) of the Civil Code and Art 701 sub Art2 of the commercial Code of Ethiopia. Because Art 701 (2) of the commercial code declared "Not withstanding that they are not motioned by name:(a)

The husband or the wife who made the insurance, even though the marriage is concluded after the life insurance contract.

(b)

The children of the person those who are borne when the contract

was

made

are

considered

as

specified

beneficiaries. These provisions of the Commercial Code have a conflicting massage from that of Art 827 (1) of the Civil Code. Under Article 827 (1) of the Civil Code, whenever, the deceased does not determine the beneficiary or makes his heirs the beneficiary, the money becomes part of the estate of the deceased. On the other hand, the husband or the wife, and the children who are born when the insurance contract was made are considered as specified beneficiaries according to Art 701 (2) of the Commercial Code.

55

The existence of these two rules to govern the money due in performance of life insurance where the beneficiaries are not specified has been the causes of dispute between. 

The children's born before and after the insurance contract because, whenever, specific beneficiary is not determined, children borne at the time when the contract was made are considered as specified beneficiaries of the insurance policy in the rules enshrined Art. 701 and 2(b) of commercial code.

Thus since children's borne at the time the contract was made become the specified beneficiaries of the policy by the operation of the law, they are the beneficiaries money payable in due of life insurance which in effect is not part of the estate of the deceased. And hence children borne after the contract has no right to claim a share because it is not part of the inheritance of the deceased pursuant to the provisions of the commercial law. On the other hand, children born after the insurance contract invokes Article 827 (1) by arguing whenever, the beneficiary is not specified, then the payment becomes part of the estate of the deceased. The heirs have the right to take their share form the succession of the deceased. 

Disputes have been arising between the wife or husband of the deceased and the children's of the deceased.

56

Because, wife is not a heir of her husband or a husband is not a heir of his wife under the succession law of Ethiopia. Thus, whenever, the beneficiary is not specified, the spouse is considered as specified beneficiary according to Art 701 (2) (a) of Commercial Code. In this case the children of the deceased may invoke Art 827 (1) to exclude the wife or husband of the deceased. Thus, the wife or the husband may argue to exclude the heirs and to get the benefits of the insurance on the basis of Art 701 (2) of the commercial code. 

When the heirs of the deceased are his descendants other than his children or his ascendants and their representatives they will base their claim to get the benefits of the insurance in accordance with the rules enshrined under Art 827 (1) while the husband or wife of the deceased argue to exclude the heirs of the deceased in accordance Art 701 (2) of the commercial code.

The contradiction existed between Art 827 (1) of the Civil Code, and Art 701 (1) of the Commercial Code is not such an apparent contradiction. Rather, the difference in the rules of the two provisions is critical that end up with different out comes. What is more difficult is that both the Civil Code and the Commercial Code of Ethiopia were proclaimed at the same time, i.e. to be effective as of 11 day of September 1960.

57

Thus, at least three opinions have been forwarded to interpret and enforce the two provisions.  First, some professionals of law argue the rules that have been enshrined under Art 701 (1) of the Commercial Code are special provisions that define the beneficiaries of a life insurance policy. Thus, this rule shall prevail over the general rules stated under Art. 827 (1) the Civil Code.  The second argument is that the rules enshrined under Art 826 (2) of the Civil Code governs what things make up the succession of the deceased. The rules enshrined in this provisions are governing the exceptions that has been stated under Art 826 (2).Thus, since the rules enshrined under the Civil Code are specific provision that define where and how a money payable for the payment of life insurance is part of the succession (estate) of the deceased, then it shall prevail over Art 701 (2) of the Commercial Code.  The third line of argument focus on the possibility of making effective the two provisions in a way the rules can ensure both the rights of heirs to take the benefits of life insurance in cases where the beneficiary was not

58

specified and that of the spouse of deceased to take the benefits of life insurance.

According to professionals that advocate this approach ,it is possible to consider the wife or the husband of the deceased as one of the heirs of the deceased , just for the purpose of taking a share from the benefit of life insurance contract made by the deceased. This protect exclusion of either the heirs or children's born after the conclusion of life insurance contract and at the same time makes the husband or wife of the deceased one of the beneficiaries of the insurance policy. On the other hand, insurance made for the benefit of heirs without making any indication, is part of the estate of the deceased according to Art 827 (1) of the Civil Code. However, though the deceased mentioned his heirs as beneficiary without making any other indications or even in a situation he mentions the name of one of the heirs, spouse or any other person, The question whether he can exclude his wife or children born when the contract was made by specifying the beneficiary in the insurance policy has been a point of dispute? Actually the dispute has been raised not because there is a contradiction between Art 701 (1) of the Commercial Code and Art 827 sub Art 1 of the Civil Code. Rather, there is a difference in 59

interpreting Art 701 sub Art 1 and Art 701 (2) of the Commercial Code. Just to make it clear,

Abebe has made a life insurance and

specified Seyum as a beneficiary. However, Abebe had a wife called Seneyt and

a son called Samson while he made a life

insurance for the benefit of Seyum. When Abebe dies, Seyum is the specified beneficiary of the insurance made by Abebe. How ever,

Seneyt and Samson may

also clams the benefit of the

insurance made by Abebe by invoking Art 701 (2),i.e. they are the mandatory beneficiaries of the insurance policy by the operation of the law. The issue is whenever there is a specified beneficiary of life insurance policy,  Are the spouse and children excluded from taking the benefit of the insurance policy? or  Are the spouse and children allowed to take part in sharing the benefits of the life insurance? Courts have made different ruling in answering such issue. For example, a high court adjudicating similar case in Addis Ababa has ruled. "The provision that is directly relevant to the case at hand is Art 701 of the commercial code. The Article, captioned as (beneficiary of insurance policy) enumerates who such beneficiaries are in sub Art 1 and 2. In the civil code and commercial code of Ethiopia some sub Articles are alternatively 60

listed under an Article by using the word "or". Others are cumulatively listed using the word "and". If the provisions are listed alternatively, it is only in default of the creditor or debtor in sub Article 1 that the person mentioned in sub Article 2 will take place the creditor or debtor, while in the provisions that are listed cumulatively, persons mentioned in both sub Articles shall jointly be creditors or debtors. But the sub articles of 701 of the commercial code have not been listed in the alternative or cumulative as mentioned above. The words "and" or "or" have not be used. There for various courts have interpreted this provision either in the alternative or in cumulative. This court would interpraet in the following manner.

. The heading of Art 701 is "beneficiary of insurance" and it describes the beneficiaries in three subsequent articles. 1. The fact that sub article 1 of this article provides the insurance policy in the event of death may be made to the benefit of specified beneficiary does not make it amendatory requirement that there should always be specified beneficiary, and even when where is a specified beneficiary, the provision does not clearly state that such person shall be the sole beneficiary of the insurance policy, and 61

2. The phrase "notwithstanding that they are not mentioned by name" in sub Article 2 cumulative sub Article 1 shows that spouses and children are made beneficiaries by law. In the opinion of the court, the purpose of Art 701 sub Art 1 is to give a right to the insured person to add other beneficiaries he wants, in addition to those who are beneficiary by law; it does not exclude those beneficiaries mentioned in sub Article 2 from sharing the proceeds. This interpretation is strengthened by the phrase, "not with standing that they are not mentioned by name..." There fore in this case we hold that the life insurance of the deceased shall be paid to the persons whose name is specified in the policy in accordance with Art 701 (1) and to those persons specified in Art 701 (2) of the commercial code." In effect such an interpretation given to the provisions of Art 701 (1) and Art 701 (2) of the Commercial Code affects the interest and rights of heirs , where the insurance was made for the benefit of the heirs in accordance with Art 827 (1) of the Civil Code. Because, according to the ruling of the court, the heirs will take the benefit of the insurance along with the spouses of the deceased specified in Art 701 (2) of the Commercial Code. On the other hand another court that entertained the appeal of the same case gives different ruling and interpretation from the first

62

one. The court ruled" In order to understand it clearly, we have to look at Art 695 of the commercial code. According to the latter article, if the beneficiary is known, his name should be indicated in the policy. This shows that the insured may or may not choose a specified beneficiary. Thus the cumulative reading of Arts 695 and 701 of the commercial code leads to a conclusion that if the insured has specified beneficiary then the insurance policy will be deemed to have been made to the benefit of the specified beneficiary pursuant to Art 701 sub Art 1 of the commercial code . How ever, if the insured has not specified the beneficiary in the policy, his spouse and children, pursuant to Art 701 (2) will be deemed to be specified beneficiaries. This conclusion is in conformity with other relevant provisions of the commercial code (Art 705 - 708) and with Art 827 of the civil code. If the spouses and the children of the deceased were deemed to be the beneficiaries even when another beneficiary is specified in the policy, Art 705 -708 of the commercial code would be rendered redundant. To sum up the subscriber can make any person the beneficiary of his life insurance in accordance with the provisions of the commercial code. By the same token, he can make his spouse, or one or more of his children specified beneficiaries. As the subscriber is free to make donations to any one so can he make any one he likes a specified beneficiary? Once he has done this, it will be considered as if he had made a donation and the money should be paid to the specified beneficiary named in the policy".

63

The central theme of this paper is not to show the different interpretation given to Art.701 Sub Arts (1) and (2) of the Commercial Code, rather the main purpose is,  To show the existing difference between the rules enshrined under Art 827 sub Art 1 of the Civil Code and Art. 701 sub Art. 2 of the Commercial Code which became a cause of dispute in the administration, liquidation and partition of the inheritance of the deceased. 

To show how the different interpretations given to Art .701 (1) and (2) of the Commercial Code can affect the rights of the heirs of the deceased who made the specific beneficiary of the insurance policy by the deceased in accordance with Art. 827 Sub Art. 1 of the civil code.

Thus, the students are encouraged to investigate the most reasonable and rational way of interpreting the rules enshrined under Art 826 Sub Art .2 and Art. 827 of the Civil Code and the relevant provisions of the Commercial Code that govern monies due in performance of life insurance in the event of death.

Questions 1.

Enumerates those things that make up the

estate of the deceased? 2.

Did you agree by the ruling made by the High

Court in interpreting Art701 (1) and (2) of the Commercial Code? 64

Why? 3.

What

would

be

the

effect

of

this

interpretation on the enforceability of the rules enshrined in Art.827 (1) of the Civil Code? 4.

Did you agree by the ruling made by the

Appellate court in interpreting Art701 Sub Arts 1 and 2 of the Commercial Code? 5. What interpretation on the

would

be

the

effect

of

this

enforceability of the rules enshrined in Art.827 (1) of the Civil Code? 2.2

The Capacity to Succeed the Deceased

Dear my distance friend; 

Try to evaluate the essence of the rules that govern the capacity of the heir to succeed the deceased?



What are the factors

that make a person incapable to

succeed the deceased? 

What is the purpose of giving a privilege for the deceased to pardon his heirs who are unworthy and incapable to take part in his succession? 65



Find out short comings of the rules that govern the capacity to succeed the deceased?

2.2.1 General Introduction According to the rules enshrined in Art 826 (1) of the Civil Code, when a person dies instantly, his succession is opened in the place of his principal residence. In effect, the law of succession does not spent any single second, when it look for another person that can take over the rights and obligations of the deceased which form the inheritance of the deceased. One of the effect of the opening of succession is to look for those persons that can take the rights and obligations of the deceased which are not terminated by his death. Moreover, when the succession of a person is opened, the law of succession starts to operate to passé the estate of the deceased to his heirs and legatees. According to the rules adopted in Art 829, the succession of the deceased; 

may be effected based on the fixed rules of inheritance what we call intestate succession ,or



It may be effected totally on the basis of the will of the deceased (testate) succession. 66



It can be effected partly by the application of the fixed rules of inheritance and partly based on the will left by the deceased. For that matter, there is a clear provision states "the property of which the deceased has not disposed by will should pass to his heirs at law" pursuant to Art 829 sub Art 3 of the civil code.

Actually, natural persons, in the absence of them the state being an exceptional legal person, may be the legal heirs of the deceased when the succession was effected totally intestate. On the other hand, either natural persons or legal persons can be the successors of the deceased in accordance with the testament made by him to their benefit when the succession of the deceased is effected totally or partially testate. These being the case, when we say the capacity to succeed the deceased in the law of succession, we are referring the legal requirements that has to be fulfilled by natural persons and legal persons to succeed the deceased. Neither a natural person, or a legal person , can qualify to succeed the deceased unless they met the requirements set by the rules of succession. The fact, whether a natural person or a legal person has the capacity to succeed the deceased is determined by the operations of the rules of succession.

67

The rules that set down the legal standard to govern the capacity to succeed in Ethiopia are found in the general provisions of the rules of succession.  The first rule is enshrined in Art. 830 of the Civil Code. According to this provision, the legal heirs of the deceased or the beneficiary of his will is qualified to succeed the deceased

only

when

they

fulfilled

two

cumulative

requirements ,that is , surviving the deceased and not to be un worthy to succeed the deceased.  These two requirements are cumulative requirements and it is clearly stated in the words of Art. 830 that declare" a person may not succeed the deceased unless he survives the deceased and he is not un worthy of succeeding him."  The second rule is enshrined in Art. 835 of the civil code. This provision set the standard and put applicable rules where legal persons can succeed the deceased. All legal persons, except the state, can be the successors of the deceased based on the will made by the deceased for their benefit. Thus, legal persons other than the state may have the capacity to succeed the deceased whenever they fulfill the legal standards stated in Art 835 of the Civil Code. Thus, it is possible to argue Art 830 of the Civil Code put the cumulative requirements that have to be met by natural persons to succeed the deceased either based on the fixed rules of inheritance or based on the testament made by the deceased. To

68

the same taken Art 835 put the standards that have to be met by legal persons to succeed the deceased based on his will. From the rules that has been enshrined in Art 830 and Art 835 of the civil code it is easy to understand that the country promote and follow more liberal policy towards succession. There are no additional requirements stated by law to succeed the deceased under the rules of succession in Ethiopia. In the succession law of other countries, the nationality, religion and other conditions were taken as a requirement to succeed the deceased which is not true to the succession law of Ethiopia. The sex, age, nationality of heir and other similar factors does not affect the ascertainment of his right to succession pursuant to Arts 836 and 837 of the civil code. Though, the requirements stated by the law to succeed the deceased are expressed under Art 830 and Art 835 of the Civil Code in a short and precise way, it is not possible to understand the very essence of these rules without making a further investigations on their context and their relationship with the provisions of other relevant rules that deal the exceptions to the general principle. Because of those, the following part of the paper is devoted to discuss issues like;  When a person is is considered surviving the deceased? and

69

 What are the causes to be unworthy of succeeding the deceased? However, it is important to remember that the requirements are a cumulative one. A person may not succeed the deceased even if he survived the deceased, when he is declared unworthy. And at the same time, a person who is worthy may not succeed the deceased unless he survives him.

2.2.2 The Surviving of the Heir to the Deceased According to the rules enshrined in Art 830, of the Civil Code, the survival of the heir when the deceased dies is one of the requirements to qualify for the succession. A person may have the capacity to succeed the deceased if he existed alive while the deceased dies. A person may exist alive when the deceased dies either in fact or by the operation of the law.

2.2.2.1 Factual Existence A person has survived the deceased if he was factually alive for one second after the death of the deceased. If the heir dies one second after the death of the deceased, he survived the deceased and qualified to succeed the deceased. This is because the succession of a person is opened as soon as the person dies. Thus, the heir of the deceased who died one second after the death of the

70

deceased died after the succession of the deceased was opened and after succeeding the deceased. This interpretation is valid according to the rules enshrined in Arts. 826 (1), Art. 830 and Art. 833 of the Civil Code of Ethiopia. Because

the

contextual

understanding

and

purposeful

interpretation of these provisions led us to conclude that, when ever a person survives the deceased for one second, he died after the succession is opened and there by succeeding the deceased. Thus, since the heir died after insuring his right to succeed the deceased, then his rights related to the succession passes to his heirs pursuant to Art.833 of the civil code. This is also strengthened by the provisions set in Art. 832 of the Civil Code. Thus, if the heir factually died one second before the deceased, then he did not survive the deceased and has no capacity under the law to succeed the deceased.

Therefore,

factual existence of the heir when the deceased dies is an important legal requirement to succeed the deceased. 2.2.2.2

Legal Existence

A person may also have the capacity to succeed the deceased, though he did not exist factually, if he has a legal existence when the deceased dies. A typical example for this is a case of a conceived child. A conceived child has no factual existence at the death of the deceased. A conceived child will be called to the 71

succession by the operation of the rules enshrined in Art 834 and Arts 1- 4 of the Civil Code. The conceived child has a legal existence and is deemed that he survives the deceased if he fulfills the condition set in Art 2 - 4 of the civil code. For that matter, a conceived child is considered born in accordance with Art 2 of the civil code.

The child succeeds the deceased if he is borne alive and lives for forty eight hours. Besides, if the child was born alive and died before forty eight hours due to the cause other than in defiance his constitution pursuant to Art 4 Sub Arts 1 and 3 of the civil code he will be qualified to succeed the deceased. The effect of this provision is that,  if a conceived child is born alive and died after forty eight hours of his birth or 

if it is proved that the child is born alive and he died before forty eight hours, due to causes other than deficiency in his constitution,

the child has the capacity to succeed the

deceased. In such a case, the heirs of the child may succeed his share form estate from the deceased pursuant to Art 833 of the civil code. Thus a person may have the capacity to succeed the deceased, though he did not survive the deceased factually, if he has a legal existence by the operation of the law.

2.2.2.2 Persons Dying Simultaneously (Cormorants) 72

We have seen in our previous discussion, if a person survived the deceased for one second, then he succeed the deceased and the rights he acquired from the succession will pass to his heirs pursuant to Art.833 of the civil code. The fact that whether one person survived the deceased for one second or more is a question of proof. If it is possible to prove that the heir survives one second after the deceased, then the heir is considered as if he died by ensuring his right from the succession. The difficulty lies where two or more persons are died at the same time, it is not possible to prove which of such persons survived the other. In a case when it is not possible to prove who survives who, the law considers each of them as the last survival but with out being entitled to take any thing from the succession of the other. It is better to use an example in order to understand the essence of the rules enshrined under Art. 831of the Civil Code. Let us assume that Ato Abebe, Mulat, and Almaz went to Sodre together for a week end visit. Ato Abebe is the father of Mulat and Almaze. When they drive back to Addis Abeba, all of them died in the fatal car accident and it is not possible to prove who survives whom, in such a case the rules of Art.831 came in to effect and the rule declares,

73

 When we deal the succession of Abebe , we consider him as the last survival of Mulate and Almaze, but he may not receive any thing from the succession of Mulat and Almaz.  When we deal the succession of Mulate, we consider him as the last survival of Ato Abebe and Almaze but he may not receive any thing from

succession of

Ato Abebe and

Almaze.  When we deal the succession of Almaze, we consider her as the last survival of Ato Abebe and Mulat but she may not receive anything from the succession of Ato Abebe and Mulat . Actually the rules adopted in Art 832 of the Civil Code are in line with the basic principle sated in Art 830 and Art 832 of the Civil Code. It simply presumes every one as the last survival for the purpose of dealing his succession. If one person is considered as the last survival while we deal his succession, in effect other persons are considered by the law as if they were died before him and they have no capacity to succeed. These rules made very clear that, whenever it is possible to prove one person died after the other, then the person that survive even for a single second is considered as died after succeeding the deceased. But when it is not possible to prove who died before or after whom, the rules deny each person from taking part in the succession of other person who died at the same time. 74

2.2.2.4

Rules Applicable to Legal Persons

The state can be the successor of the deceased by the operation of the fixed rules of inheritance or according to a testament made by the deceased for its benefit, While other legal persons can be called to the succession of the deceased if he leaves a will.

However, there are at least two types of legal persons which can be called to the succession of the deceased. The first one is such legal persons that have a legal existence when the succession of the deceased is open The second one is those who have no legal existence when the succession of the deceased is open and may got their legal existence based on the will of the deceased. This is clearly indicated in Art. 484 Sub Art1 and Art.517Sub Art 1 of the Civil Code. 2.2.2.5

Person Non Existent Legally

There may not be a sufficient proof that a person is died factually. When a person disappears, his absence may be taken as if he is dead by the relevant provisions of the civil code. In such a case;  If the deceased died before his heir is declared absent by the court, then the heir is considered as if he survived the victim.

75



If the deceased died after the absence of his heir is declared by the court, the heir is considered as if he died before the deceased. In such a case, though there is no sufficient proof about the death of the heir before the deceased factually, the heir lost his existence by the operation of the law. And by judicial declaration made about his absence. A person, who has been declared absent by the court of law, looses his capacity to succeed the deceased.

To conclude, the factual or legal existence of a person when the deceased dies is one of the conditions to succeed the deceased. However, in exceptional cases, a legal person that has no legal existence at the time of death of the deceased may have the capacity to succeed the deceased. However, a person who survives the deceased either factually or by the operation of the law may not be competent to take part in the succession of the deceased, if he did not fulfill the second requirement laid down by the rules i.e. if he is unworthy to succeed the deceased. 2.2.3 Unworthiness of the Heir to Succeed the Deceased. As it is stated before, a person who survives the deceased can have the capacity to succeed the deceased when he is not unworthy of succeeding the deceased. According to Art 830 of the civil code surviving the deceased by it self is not a sufficient condition to succeed the deceased. The surviving person can be capable of succeeding the deceased when he is not unworthy to succeed. 76

The concept of "unworthiness" designate the exclusion of the legal heir or legatees from participating in the succession of the deceased by an express order of the rules of succession. The law orders the heir or the legatee of the deceased unworthy of succeeding the deceased on the basis of his immoral or criminal activity made against the deceased, his legal heirs or against the lawful act executed by the deceased. Unworthiness to succeed the deceased comes to effect by the operation of the law. The rules of succession clearly stated the causes for unworthiness. The causes for unworthiness are enumerated in the rules of succession. Unworthiness denotes a strict public policy taken by the law maker against a crime or indecent behaviors of the heirs. Unworthiness is a form of civil sanction imposed on the heir of the deceased for committing legally prohibited activities which are clearly stated in the law of succession. The rules that govern unworthiness of succeeding the deceased can be categorized;  The rules that enumerates the crimes which make the heir unworthy  The rules that list out immoral or indecent behaviors of the heirs which make the heirs unworthy  The rules that govern the pardon of the deceased. 77

2.2.3.1Crimes that cause unworthiness According to Art 838 of the Civil Code any person is unworthy to succeed the deceased if he committed and sentenced one of the following crimes.  If he intentionally killed the deceased or the descendant, ascendant or spouse of the deceased  If he attempted to kill the deceased, or the descendant, ascendant or spouse of the deceased  If he made a false accusation which might have entailed the condemnation of the deceased, or descendant, ascendant or spouse to capital punishment or rigorous imprisonment for more than ten years.  If he made a false testimony which might have entailed the condemnation of the deceased, the descendant or spouse to capital punishment or rigorous imprisonment for more than ten years. The fact that the person is suspected and arrested by the police for committing any one of the crimes listed in Art 838 and the fact that the person is charged by the prosecutor for committing any one of the crimes listed in Art 838 does not make him unworthy of succeeding the deceased. A person is unworthy to succeed the deceased only when he is convicted by the court for committing one of the crimes listed in Art 838 of the civil code.

78

The legislator/government adopted a strict policy to defend the deceased, the descendants, ascendants and spouse of the deceased from an intentional homicide, attempt of homicide, false accusation and false testimony that makes them liable for heavy penalty.

The rules enshrined in Art 838 of the Civil Code reflects the strong interest of Ethiopian government to deter the intentional killing of the deceased, the descendant, ascendant and spouse of the deceased. To accord such protection, the rules of succession put strong sanction on the heirs/legatee, in addition to the penalty imposed by the criminal court for the commission of the crime. By declaring such heir/legatee unworthy of succeeding the deceased, the rules of succession denies any possibility of the person to collect a property and benefit from his criminal activity. i.e. The law

did not allow any person to take part in the

succession of the deceased after he made him the victim of an intentional homicide or attempt to homicide. Moreover the rules of succession order the heir/legatee to refrain from committing any one of the crimes against the descendant, ascendant or spouse of the deceased if he wishes to take part in the succession. Though, the rules enshrined in Art 838 reflect the general concern of the public in protecting the deceased, his descendant, ascendant 79

and spouse from crimes listed there in, the means and method of prove required by the rules to establish whether the heir/ legatee has committed any one of the crimes listed in Art 838 of the Civil Code makes the ineffectiveness of the rules in achieving their purpose doubtful and questionable. This is because, the means and method of proving that the heir or the legatee committed any one of the crimes listed in Art 838 is the conviction of the heir/legatee for such crime by the court of law. The law does not allow any other means and method of prove to establish whether the heir/legatee committed any one of the listed crimes other than a guilty judgment made by the court. The very reason for demanding a specific means and method of prove i.e. criminal court guilty judgment may be justified by the very concern and purpose of the rules of succession. The rules of succession are always concerned with ensuring the rights of the heir to succeed the deceased and only denied such right on the basis of sufficient and clear evidence. Thus, the rule enshrined in Art 838 of the Civil Code does not affect the denial of the rights of the heir to succeed the deceased on the basis of a mere fact that he is suspected or charged for committing the crime. However, there are a number of instances where the criminal proceeding may be interrupted before a person suspected is charged or a person charged being convicted by the court of law for his crime.. In some cases, there is a sufficient and accurate prove that establish the heir/ legatee committed those acts 80

enumerated in Art838

but he is not declared unworthy to

succeed the deceased simply because the criminal proceeding is interrupted due to;

 The death of the accused before the end of the trial  Because it is not possible to arrest the accused and bring him to the court  When it is not possible to produce the witnesses to the court due to different reasons In such and other similar cases, the person may not be declared unworthy simply because the case has been closed for simple and procedural reasons. Thus, the need for a judgment of guilty of the heir or legatee for committing any of the crimes listed in Art 838 of the Civil Code in order to declare a person unworthy of succeeding the deceased is a point of dispute that invite critical analysis The commission of the crime or the attempt to commit one of the crimes listed in Art 838 of the Civil Code may be a cause for unworthiness of succeeding the deceased, when the crime or the attempted crime is committed before the death of the deceased. According to Art 839 of the civil code if the heir/legatee committed any one of the crimes listed in Art 838 of the Civil Code after the death of the deceased and who is sentenced by the court may not lose his capacity to succeed the deceased. 81

2.2.3.2 Other Causes of Un worthiness. A person, though not committed or attempt to commit the crimes listed in Art 838 of the Civil Code, may be unworthy of succeeding the deceased if he committed such faults that has been prohibited by the rules of succession. The causes for unworthiness other than those stated in Art 838 of the Civil Code are enshrined under the rules of Art 840 of the Civil Code.  The first one is, taking the advantage of the physical state of the deceased, if the heir prevented the deceased from;  making,  revoking or  modifying his will , within three months prior to the death of the deceased,

such a heir is declared

unworthy of

succeeding the deceased pursuant to Art 840 (1) of the Civil Code. However, the question what if the person started to prevent the deceased from making modifying or revoking his will six months prior to his death and the act of preventing continued until one month prior the death of the deceased? In other words, when the prevention made by the heir/legatee started earlier than three months prior to his death and the act continued until three month, two month, one month or one day prior to the death of the deceased. In such a case we have to 82

consider not the date the prevention has been started by the heir but the last date where the act of prevention came to an end. If the prevention stop for less than three months prior the death of the deceased,

thus the heir is unworthy to succeed the deceased

pursuant to Art 840 (a) of the civil code. On the other hand, the wording of the provision that say “within three months prior to his death” is not clear as to the day on which the thirty day of the three month is inclusive or the provision exclude the thirty’s day of the third month prior the death of the deceased. The reason why the law put three month period of limitation prior the death of the deceased, can be justified if the prevention was made before three months from the death of the deceased, the deceased has sufficient time to make, modify , or revoke , his will unless and other wise the act of prevention continued until the period specified by the law. The law put a reasonable time to make the heir unworthy of succeeding the deceased

for preventing him from making,

modifying ,and revoking his will .The law put such restriction because, a person may be thinking of making a will when he feel that he will be surprised by death within few days or months. Thus, if the heir prevented him from executing such act, the law want to punish him by imposing a civil sanction enshrined in

83

the rules of succession by making him unworthy and incapable of succeeding the deceased.  The second condition is that the heir/ legatee prevented the deceased from making, modifying or revoking his will taking all advantage of the physical state of the deceased. In this case, if the deceased was physically capable to move and perform any activity, an act to prevent him from making, modifying or revoking a will may not be a cause for unworthiness. However, the heir may put the deceased under strict confinement for example, he may have deprived him of his liberty starting from three months prior to his death, in spite of the fact, that the deceased's physical state was good. Should the heir be declared unworthy of succeeding the deceased pursuant to Art 840 (a) of the Civil Code? The other issue is what kind of acts is considered as prevention of the deceased from making, revoking or modifying his will?  Should the heir perform such clear acts to prevent the deceased ?or  Is omission or failure to render assistance to the deceased to make, modify or revoke his will, whenever it is expressly asked by the deceased and in a situation where the deceased could not make it with out his assistance,

suffice to

constitute an act of prevention which is stated in Art.840 (a) of the civil code? 84

Making of will, modifying and revoking of a will is one of basic right of the deceased which can be executed personally by himself only. Thus, if he is prevented from executing such activities by his heir/legatee within three months prior to his death, The heir or legatee that interfered and prevented the deceased from executing these acts either by action or by calculated and intentional omission should not be allowed to collect the fruit of his illegal or immoral activity. Thus, the heir will be subjected to civil sanction imposed by the rules of succession. He looses his capacity to succeed the deceased by the operation of the law and will be declared unworthy. Art 840 (a) of the Civil Code put a sanction against the act of the heir /legatee that prevent the deceased from making, modifying and revoking his will. The act of prevention can be made before the deceased make his will, modify or revokes his will. This provision prohibits and penalizes any form of pro- active action made by the heir or legatee to prevent the deceased from making, modifying and revoking his will by the rules enshrined in the Art 840 (a)  On the other hand, the law also put a sanction and penalizes any illegal activity made against the last will of the deceased. Art 840 (b)of the Civil Code

is directed to

prevent any pre-active measure taken by heir/ legatee 85

against the last will of the deceased. This is to say, it is directed to prevent and punish, 

Any intentional destructions, or



An intentional act that caused the disappearance of the last will of the deceased leaves the last will of the deceased without any effect.

Because, it is impossible to prove the existence of a will left by deceased in a situation where the will left by the deceased is destroyed or disappeared. Alteration of the will of the deceased also make the will of no legal effect because the law may not give effect for the last wish of

deceased which has been

changed substantially by the act of third party. A close look and examination of Art 840 (a) of the Civil Code shows that the act of the heir /legatee is directed to prevent the deceased from exercising his right to make, modify and revoke his will, while the acts of the heir or legatee indicated under Art. 840 (b) is directed towards destroying, cause disappear or modifying the last will of deceased that he executed by exercising his right to make a will.  The first one focuses on acts preventing the rights of the deceased,  The second one focuses on acts made against a legal instrument made by the deceased. Acts indicated in Art 840 (a) of the Civil Code can only be made before the death of the deceased. It is possible to argue that acts 86

indicated in Art 840 (b) can be made before and after the death of the deceased. Because Art 840 (b) did not put any time limit as to when those illegal acts can be punishable by the rules of succession. However, some people say, the phrase "with out the consent of the latter" stated in Art 840 (b) of the Civil Code shows the intention of the legislature to put a sanction against an act that was committed before death of the testator. However, destroying the last will before the death of the deceased may not affect the succession since he can make a new one. The act of destroying, causing to disappear or altering the last will of the deceased will make the will of the deceased with out legal effect when it is made after the death of the deceased. Thus, the rules enshrined in Art 840 (b) put sanction against the act of destruction, causing disappearance or altering the last will of the deceased whether it was done before or after the death of the deceased. In both cases the heir has to be declared unworthy of succeeding the deceased.  The third condition that causes for unworthiness of the heir is to avail a false will with a full knowledge that it is not genuine one. This rule is adopted in the last paragraph of Art 840 (b) of the Civil Code. From this provision we can say if a person avails himself of a false will with out knowing that it is false, he will not be declared 87

unworthy of succeeding the deceased. But if the person attempted to take part the succession of the deceased by using the false will as evidence knowingly, and then he is unworthy of succeeding the deceased though he did not achieve the intended result. 2.2.4

Pardon Made by the Deceased

A person losses his capacity to succeed the deceased by the operation of the law where he committed any one of the crimes listed in Art 838 or when he commit acts prohibited in Art 840 of the Civil Code. However, the law gives a option to the deceased either to pardon his heir/ legatees who are declared unworthy by the operation of the law or to leave them as if they losing their capacity to succeed. Thus, a person who is unworthy of succeeding the deceased according to Art, 838 and 840 of the Civil Code may retain his capacity to succeed only when the deceased pardoned him and express his wishes that the heir may participate in his succession. A person may pardon those persons who are unworthy to succeed the deceased in accordance with Art 838 and 840 of the Civil Code in two forms;  The first one is when he expressly pardoned his heir pursuant to Art 841 (1) of the Civil Code. The deceased is said to haven give an express pardon where he clearly states in a holographic or public will that he pardoned his heir who is unworthy of succeeding him. 88

 The second kind of pardon is an implied pardon made by the deceased to his heir. The deceased made an implied pardon pursuant to Art 841 (1) of the Civil Code when he fulfills two basic conditions;  When the deceased made a legacy in favor of his heir with a full knowledge of the circumstances i.e. when the deceased made a legacy knowing an act of a crime or other illegal acts committed by his heir  When the legacy is made after the happening of the event giving raise the unworthiness of his heir. In effect if the legacy was made before the happening of the event that give rise unworthiness his heir, this may not be considered as an implied pardon of the deceased. What is important to note here is, the deceased may give an express or implied pardon for the crime that was committed before his death according to Art 838 of the Civil Code. More over, the deceased may give an express or implied pardon for those heirs that committed acts stated in Art 840 /a/ of the civil code. Besides, a person may pardon his heirs who have destroyed his last will, who cause to disappear or who altered his last will before his death. On the other hand, a deceased can never expressly or impliedly pardon his heirs who destroyed; cause to disappear, altered and knowingly availed themselves of a false will to take part in his succession after his death. Because, after the death of the deceased 89

the heir that committed those acts have no chance of being pardoned by the deceased.

The heirs of the deceased that committed such illegal activities after the succession of the deceased has been opened lose their capacity to succeed the deceased permanently and in absolute manner.

Questions 1.What kind of evidence is required to prove the unworthiness of the heir pursuant to Art838 of the Civil Code? 2.What kind of evidence is required to prove the unworthiness of the heir pursuant to Art840 of the Civil Code? 3 What is the difference between unworthiness to succeed and a disheirsion of a heir made in accordance with the law?

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CAPTER THREE INTESTATE SUCCESSION IN ETHIOPIA

Dear my distance friend This chapter is designed to discuss with you about  The meaning and essence of intestate succession  The Relatives of the deceased, who will be called to the succession of the deceased in the first, second, third, and fourth order.  The essence of representation and rules applicable for representation  The conditions where by succession can devolve up on the state. 91

3.1

General Introduction Dear my distance friend;

 Try to define the concept called ''intestate succession" ?  Enumerate the basic characteristics of intestate succession?  Identify the bases for the rules of intestate succession under Ethiopian law? 3.1.1 Definition of Intestate Succession and its Essence The word "intestate" refers to a person who died without a valid will. While "intestate law" refers to the relevant statute governing the succession to the estate of those who died without leaving a valid will, intestate succession is the method used to distribute the property owned by a person who died without leaving a valid will.

Under the succession law of Ethiopia the succession of a deceased may be;  Totally intestate  Totally testate or  Partially testate and partially intestate Pursuant to Art 829 (1) and (2) of the Civil Code. Besides, according to Art 829 92

Sub Art 3 of the Civil Code, the property which the deceased has not disposed by Will shall devolve upon his heirs. From this it is clear that the rules of the Civil Code that govern the intestate succession i.e. the rules enshrined from Art 842 - 856 of the Civil Code may have a practical importance;  When the person died without leaving a valid Will;  When the person disposes only part of the property by his Will and part of his property remain intestate and  When the Will left by the deceased is nullified and became ineffective due to different reasons. This means, when a person dies by disposing the whole of this property by a valid will and where there is no any property which is not disposed by the valid will of the deceased, the rules of intestate succession which are stated in the civil code will not have any practical importance.

3.1.2 Kinds of Intestate Succession Intestate succession is a method used to distribute a property owned by a person who dies either totally or partially intestate. Whenever the succession of a person is executed by the operation of the rules of intestate succession, there are three kinds of successions. These are;

I)

Natural succession.

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Natural succession is a succession between two natural persons. The rules of the succession law of Ethiopia that govern intestate succession give a wider chance for the relatives of the deceased to succeed him whenever the deceased died intestate. Our rules of succession exhaustively list out the relatives of the deceased who are called for his succession either being a principal successor or the representative of the principal. Hence, Ethiopian Law of succession promotes and protects the estate of a deceased that could be succeeded by his relative i.e. a natural person.

ii)

Irregular Succession

Irregular succession is a succession whereby the deceased is succeeded by the state or other legal person based on special laws favoring them. The rules of intestate succession of Ethiopia exhausted every possibility to make the succession of the person who died intestate a natural succession. However, when the relatives of the deceased who are called for his succession as a principal heir or representative heir are incapable of succeeding the deceased, the state is called by Article 852 of the Civil Code to succeed the deceased. It is only when the state based on this rule succeeded that the deceased. The succession of a person who died intestate can be called "irregular succession" in Ethiopia.

iii)

Vacant succession

Vacant succession is a succession mostly found in the civil law countries. It is a kind of succession that failed either because there 94

are no known heirs, or because the heirs have renounced the estate and the succession law of the country has no rules that can regulate such a failure. In case of a vacant succession, the estate of the deceased remains without a heir or any successor. There is not such kind of succession in Ethiopia. Because whenever there are no known heirs of the deceased, Art 852 of the Civil Code made the state the immediate successor of the deceased's estate so that the succession of an intestate person may not be open and vacant. Thus the primary purpose of adopting Art 852 in the Civil Code is not to benefit the state by succeeding the deceased who have no heir but to protect the estate of the deceased from such failure i.e. from being vacant.

3.1.3 The Bases of the Rules of Intestate Succession The rules that govern intestate succession are enumerated and stated from Arts, 842 - 856 of the Civil Code. Close examination of the content of these rules disclosed that the intestate succession under Ethiopian law is exclusively based on the consanguinity relationship that existed between the deceased and his heirs. Consanguinity relationship is the bonds of natural relationship derived from community of blood. Thus, the bond of relationship by consanguinity exists, in the direct line between ascendants and descendants. In the collateral line, it exists between persons who descend from one or more common ascendants.

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The rules of succession that govern intestate succession in other countries used both consanguinity relation ship and affinity relationship that existed between the heirs and the decease. But under Ethiopian succession law, a person may not succeed the deceased with whom he had an affinity relationship unless the deceased made a legal will in favor of him. Thus, even in the absence of legal heirs who have a common blood bond with the deceased, the wife is not entitled to succeed her husband or the husband is not entitled to succeed his wife. In effect, if the deceased died intestate and when his relatives who are called to succeed him are not capable, the state becomes his heir, though his spouse or persons who have an affinity relationship with the deceased are alive and able to take his estate. It is possible to criticize the fairness of the bases for intestate succession in Ethiopia. However, it is important to note that the rules of intestate succession of Ethiopia is exclusivly based on the consanguinity relationship that exists between the deceased and the heir. It does not take into account the affinity relationship that exists between the deceased and his relative who has an affinity relationship with him.

3.2

Rules of Intestate Succession

Dear my distant friend,

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 Try to enumerate the difference between the relatives of the deceased who will be called for his succession in their order?  How could the relatives of a person who has a collateral relationship take part in the succession of the deceased?  What is the difference b/n the rules enshrined in Art 833 with that of Arts, 842?  What is the essence of the rule of paterna paternis materna maternis? 3.2.1 Heirs in the First Order According to Art 842 sub Art 1 of the civil code, the children's of the deceased are the first to be called to his succession. Here children's of the deceased refer to those;  Who borne in the legitimate marriage; and  Children born out of marriage Thus, a child who is borne out of marriage has an equal right to succeed his father with those children born in marriage. This is because the legitimately and illegitimately of the deceased or of the heir never affect the ascertainment of the heirs or the value of the portion allotted to each of them pursuant to Art 836 of the Civil Code.  The word "children" stated under Art 842 (1) of the Civil Code is also equally applicable to the adopted children of the deceased. It is because a bond of consanguinity can be 97

created by the contract of adoption that was made in accordance with the law. An adopted child is deemed to be the child of the adopter for all practical purpose pursuant to Art557 of the Civil Code. There for, adopted children shall be assimilated to the other children of the deceased pursuant to Art 836 (2) of the Civil Code.

Thus, whenever a person died the children of the deceased i.e.  Children born in marriage,  Children born out of marriage, and  Adopted children of the deceased are the first to be called for his succession. The rule of succession did not end up by defining who should be called first to the succession of the deceased. Rather, the rule has determined the respective share of the heirs of the deceased. According to Art 842(2) each of the children of the deceased has to receive an equal portion from the estate of the deceased. This means, the partition is made per head. As it is stated before, a person who has survived the deceased has no capacity to succeed the deceased. The issue here is what if one of the children or all of the children died before the deceased and have descendants? The law answers this question by adopting a clear provision that allowed representation of succession. According to Art 842 (3) where one of the heir of the deceased who is to be called first to 98

the succession of the deceased before the succession of the deceased is opened is survived by the descendants, he shall be represented in the succession by his descendants. Pursuant to these provision descendants of children of the deceased who died before him will take part in his succession by representing the children of the deceased. For example - Ababa had three children,  Abraham, the one she born from marriage  Yewbdar, the one she born out of marriage  Alemayhu the one she dopted in accordance with the rules of the Civil Code.  Abraham has three children called samson, Teshome and Abrash  Yewbdar has a child called Almaze  Alemayhu has two children called Alemu and kidest Abraham, Yewbdar and Alemayhu died six months before Ababa.When Ababa died Samson, Teshome and Abrash will take part in the succession of Ababa by representing Abraham pursuant to Art 842 sub Art 3 of the Civil Code. Almaze will be called for the succession of Ababa by representing yewbdar, and Alemu and kidest will be called to the succession of Ababa by representing Alemayhu. It is only the descendants of the children of the deceased who are allowed to take part in the succession of the deceased by 99

representation. Ascendants are not allowed to represent their descendants. Art 840 sub Art 3 of the Civil Code talks of the descendants and this is intentionally formulated by the legislature. Because descendants means the son /daughter, grand son/ daughter grand, grand son / daughter/ which goes up to seven generation. This is clearly stated under Art 853 (3) of the Civil Code. Pursuant to this provision where one or more children of the person represented died, they shall themselves be represented according to the same principle. The share of the representatives is the portion of the children whom they are representing. This is because the children of the person represented take his place and exercise his right relating to succession. Thus, where representation takes place, the partition shall be made "per strips". The share of the representative heirs may not be equal in amount. This is because; the representative heir can take only the portion of the estate of the deceased which the child of the deceased would have got had he survived the deceased. In the above mentioned example, it is clear that Ababa has six representative heirs all of whom are her descendants. However, the portion that each of them can take from her estate is not equal. For example if the total value of Ababa's estate is 900,000 100

(nine hundred thousand birr) this may not be divided equally for the six representative heirs and the amount of each heir is not 150,000 birr. Rather the total value of the estate will be divided equally in to three parts i.e. a portion that would belong to Abraham, Yewbdar and Alemayhu, who are the children of Ababa. Then;  The value that would be taken by Abraham if he were alive which is 3000,00 (Three hundred thousand Birr) would belong to his representatives i.e. samson, Teshome and Abrash.  The value that would be taken by Alemayhu if he survived Ababa

which

is

300,000

birr

would

belong

to

his

representatives i.e. Alemu and kidest  The value that would be taken by yewbdar if she survived Ababa 300,000 would belong to her representative Almaze.  Therefore, at the end of liquidation of succession, Samson, Teshome and Abrash took only 100,000 Birr each because they divided the portion that belongs to Abraham in to three, while Alemu and kidest took 150,000 birr each because they divided the portion that belongs to Alemayhu in to two. 

Alamaz, being the sole representative of yewbdar took 3000,00 Birr, which is the portion that belongs to yewbdar from the estate of Ababa. That is why Art 853 (1) of the Civil Code 101

declares, that where representation takes place, the partition shall be made "per stripes"

Question 1.

What is the difference between the rules enshrined in Art 842 sub Art 2 and Art 853 (1) of the Civil Code?

2.

What is the difference between the partition of an estate made based on "per head" and part made based on "Per Strips"?

3.2.2. Heirs in the Second Order Whenever the deceased is not survived by descendants, his father and mother will be called to his succession. Pursuant to Art 842 of the Civil Code the ascendants of the deceased will be called for his succession by the operation of the law only,  First when the deceased is not survived by his/her children born in the legitimate marriage, children born out of marriage and by an adopted child; and Secondly, when the deceased is not survived by the descendants of any one of his children. If the deceased is survived by one of

102

descendants then his mother and father may not be called to his succession.  Even though the rules enshrined under Art 843 of the Civil Code seems a clear provision which does not need any form of interpretation there is a room for discussion as to who will be the heirs when an adopted child died and heirs not survived by descendants. This is because adopted child has;  A blood father and mother; and  Adopter father and mother Thus, the wording of Art 843 of the Civil Code which says "his father and mother" is open to interpretation where the deceased is an adopted child who has no descendants to be called for his succession. In such a case, Art 843 of the civil code should be seen with the relevant provision RFC Provisions of the civil code that govern adoption. The rules of the Civil Code stated in Arts 796 806 put the governing principles and rules as to the formation and validity of contract of adoption. However, the bonds of consanguinity or affinity resulting from the contract of adoption is governed by the provisions of the civil code that deal about the bonds relationship i.e. pursuant to 796 (2) of the Civil Code. The bonds of consanguinity and affinity can be created by the contract of adoption. This contract of adoption which is concluded in accordance with the law has legal effects.

103

 One of its effects is that an adopted child shall be considered as the child of the adopter for all purpose pursuant to Art 557 of the Civil Code.  The other effect of adoption in Ethiopia is it does not terminate his bonds with his family of origin. That is, the adopted child continues to retain his bond with his family of origin pursuant to Art 559 Sub Art 1 of the Civil Code. From these two provisions, it is obvious that an adopted child has a consanguinity bond created by the adoption contract with his family that adopted him, and at the same time he retains the bond with his family of origin. Because of this, when his succession is opened, and when he has no descendant survivor, his adopter father and mother and his blood father and mother will avail themselves as his successor pursuant to Art 843 of the Civil Code What is more difficult is that, even the meaning and enforceability of Art 559 (3) of the Civil Code is not clear. Art 559 (3) of the Civil Code stated "Whenever a choice has to be made between the family of adoption and the family of origins, the family of adoption shall prevail" The issues that could be raised are: Is there any need to make a choice between the family of adoption and family of origins of an adopted child for the purpose of his succession?

104

 Is it not possible to make both his adopter father and mother and his blood father and mother the heirs of the deceased pursuant to Art 843 of the civil code?  Adopted child will be called in the succession of his family of origin and in the succession of his family of adoption. Is it important to make a choice and exclude his family of origin from taking part in his succession?  What would be the effect of making choice and excluding the family of origin of the adopted child from his succession?  Is this the intended purpose which the legislature wanted to achieve by adopting Art 559 sub Art 3 of the civil code? These and other issues have to be dealt in the course of interpreting and enforcing Arts, 843, 557 and Art 559 (1) and (3) of the Civil Code. According to Art 844 sub Art 1 of the Civil Code, the father and mother of the deceased may decide the estate of the deceased in to two equal parts and each of them shall receive half of the inheritance. Moreover, whenever the father or the mother or both of them die before the opening of the succession of the deceased, his father and mother will be represented by their children or other descendants.

105

There is a unique arrangement of the law of succession when the heirs of the deceased are his ascendants and their representative. Because ,it divided the estate of the deceased in two lines. That is: A portion that would be succeed by the parental line ;and  A portion that would be succeed by the maternal line Thus, the share that would be taken by the father of the deceased if he survived him will be taken by the descendants of his father and the share that would be taken by the mother of the deceased if she survived him would be taken by the descendants of his mother pursuant to Art 844 of the Civil Code. However, under the operation of this provision a deceased may be survived;  By the common descendants of his mother and his father; or  By the sole descendants of his father; or  By the sole descendants of his mother For example, Tessema died without being survived by descendants leaving a property that has a value of 500,000. His mother Alemush and his father kebede were called to his succession. both of them died long before Tessma. Accordingly, the representative heirs : Yirgalem who is the son of both Alemush and Kebede  Alemetu and Zewde who are the daughters of kebede borne from his previous wife ; and  Genetu Who is the son of Alemush borne from her first husband survived the deceased Tessema. 106

 Thus, Tessema has five representative heirs who are the decendants of his father and mother, How can you divide the estate of Tessema to his heirs?  In what capacity can yirgalem take part in the succession of Tessema?  Is the portion that belongs to Yirgalem greater than the portion that belongs to Genetu, Alemetu and Zewde? To solve these problems Art 844 sub Art 2 should be seen in light of Art 853 sub Arts 1 and 2 of the Civil Code. The estate of Tesema will be divided in to two. 250,000 Birr for kebede or his representative

and

250,000

Birr

for

Alemush

or

her

representative.  Yirgalem, Alemetu and Zewde will take part in the succession of Tessema by representing their father kebede. Thus They took 83,333 Birr each from the estate of the deceased.  On the other hand yirgalem and Genetu will take part in the succession of Tessema by representing their mother Alemush and each of them will take 125,000 Birr from the estate of the deceased. Thus the Total value that yirgalem will get from the estate of Tessema is 208, 333 Birr. This is because he has represented both the father and mother of Tessema and exercised the rights of the two heirs pursuant to Art 853 sub Art 2 of the Civil Code. The 107

same rule is applicable for the other descendants of the mother and father of the deceased. It is only in default of a descendants that will be called to succeed the deceased by representing the father of the descendants, the share that would be succeed by his father or his descendants is devolved to the heirs of his mother line. The same rule is applicable to his mother line. It is where no descendant of the mother survived the deceased; the whole estate of the deceased will devolve to his heirs that come from his father line. Art 844 sub Art 3 of the Civil Code makes this arrangement clear and stated " In default of an heir in one line, all the inheritance shall devolve up on the heirs of the other line" Thus, the law called the collaterals of the deceased (his brother, sister and their descendants) to take part in his succession not as a principal successor but by representing his mother and father.

Question 1.

Evaluate the rules applicable for the succession of an adopted child when he is not survived by descendants?

3.2.3 Heirs in the Third Order Where the deceased is not survived by decedents, by his mother and father and by the descendants of his mother and father, his grandparents will be called for his succession pursuant to Art 845 (1) of the Civil Code. 108

When grandparents of the deceased are called for his succession, the deceased may have four heirs or their descendants as their representatives i.e;  The mother of the deceased father or her descendants  The father of the deceased father or his descendants  The mother of the deceased mother or her descendants  The father of the deceased mother or her descendants. In such a situation half of the estate of the deceased will devolve to the mother of his father and the father of his father or to their descendants. Similarly, half of the estate will devolve to the mother of his mother and to father of his mother or to their descendants pursuant to Art 845 (2) of the civil code. Moreover, where one of the grandparents of the paternal line or maternal line dies without descendants, for example if the mother of the deceased father dies with out descendants, her portion will devolve to the descendants of the father of the deceased's father. By the same token, If the father of the deceased's mother dies without descendant, his portion will devolve to the descendants of the mother of the deceased's mother in accordance with Art 846 sub Art 1 of the civil code. It is only when both the mother of the deceased's father and the father of the deceased's father i.e. where both grandparent on one 109

line die without descendants the whole succession will devolve up on the descendants of the other grandparents line servant to Art 846 (2) of the Civil Code.

Question  Try to enumerate the representative heirs of the deceased when he is not survived by descendant, his father and mother and their descendants.  Try to exercise how you can made a partition in such kind of succession.

3.2.4 Heirs in the fourth order In default of heirs of the deceased in the third degree the great grandparents of the deceased will be called for his succession pursuant to Art 847 of the Civil Code.  In such a case the great grand parent of the parental line or their descendants will be entitled to half of the deceased estate and the great grand parent of the maternal line or their descendants will be entitled to the other half of the estate of the deceased pursuant to Art 848 (1) of the Civil Code. According to Art 847 and Art 848 (1) of the civil code, the heirs of the deceased to be called to his succession are:- form parental line  The father of the descendants grand father or his descendants  The father of the descendants grand mother or his descendants 110

 The mother of his grand father or her descendants  The mother of his grand mother of her descendants from the maternal line  The father of the descendants grand mother of his descendants  The mother of the descendant grand motherThe mother of the descendant grand father  While the great grandparent paternal line and the great grand patent of maternal line divided the estate of the deceased in two equal parts, the rules used to dividing half of the estate assigned to the maternal or paternal line for the surviving great grand parent and their survival is not as such "pre strips". Rather, the great grand parent or their descendant surviving in the paternal line made dived their respective share form the estate of the deceased equally and the great grand parts or their descendants may divide their respective share in equal portion pursuant to Art 848 sub Art 2 of the Civil Code. The rules enshrined under Art 848 sub Art 2 of the Civil Code is an intentional deviation on the side of the legislator from the principle it has adopted under Art 853 sub Arts 1 and 2 of the Civil Code. This might because people who are called as heir to the deceased in the fourth degree and their descendants have no special attachment to the deceased.

111

Thus, the law allowed them to divide the share of the paternal or the maternal line for those who survived the deceased in equal portion. Art 848 sub Art 2 of the Civil Code can be taken as an exception to the rules and principles enshrined in Art 853 Sub Art 1 and 2 of the of the Civil Code.

The last question that should be answered by the rule of succession is that who will be called for the succession of the deceased if he is not survived by heirs in the fourth degree. According to Art 852 of the Civil Code in default of relatives, that means in default of relatives who can succeed the deceased in the first, the second, the third and fourth degree, the inheritance of the deceased shall devolve up on the state. Evaluate the general strength and weakness of the rules that govern intestate succession in Ethiopia?

3.3

The Rule' Paterna Patern's and Maternal Maternis'

The basic essence of this rule is to keep the immovable property especially that of land that come from the succession or donation within the same parental or maternal line. According to Art 849 sub Art 1 and 2 of the Civil code an immovable property derived by way of succession or donation from the paternal line of the deceased may not be assigned in full ownership to the heirs of the maternal line.

112

This provision is an exception to the general principles that are stated under Art 844 (1) Art 845 (2) and Art. 848 (1) of the Civil Code. Thus, during the partition of the succession, the heirs has the right to take an immovable property by way of succession and donation. The rule of "maternal maternis" and" paterna paternis" are not applicable to the immobile property derived by donation or succession from the grand paternal line can not be assigned to an heir of the grand maternal line and vise-versa pursuant to Art 849 (3) of the CivilCode. Secondly, the rules enshrined under Art 845 (1) and (2) of the Civil Code are not applicable where there are heirs only in the paternal or maternal line or in grand paternal or grand maternal line pursuant to art 849 sub Art 3 of the Civil Code. The effect of this rule is that a heir from that paternal or grand paternal line who is entitled to a portion of the estate of the deceased which is an immovable property derived by donation or succession from the maternal line, may not have full ownership right of the immovable property. Rather, he may have only a usufruct right on the immovable property, Per Art 850 (1) of the Civil Code.

Question

113

1.

What is the importance of the rule of "materna maternis" and "paterna paternis"?

2.

Is this rule compatible with the present legal, economic and political situation of the country?

3.

Is this a rule of partition of succession of the deceased?

CHAPTER FOUR TESTATE SUCCESSION IN ETHIOPIA Dear my distance friend This chapter is designed to discuss with you about the following concepts and those rules that govern the subject matter under discussion. That is, it is designed to discuss:  The Definition and Nature of Will  The Inherent and Formal Elements of Will  The Nature of Testamentary Power and its Limits  The Essential Conditions for the Validity of Will 114

 The Contents and Interpretation of Will  Revocation and Lapse of Will

4.1 Definitions and Natures of Will Dear my distance friend; 

Try to find out the definitions of will given by different jurisdictions based on their own policy considerations?

 Is there any definition of will under the succession law of Ethiopia?  What are the basic features of will which are commonly reflected in the laws of many jurisdictions? 

What are essential elements of will which are recognized by the succession law of different countries?

As it is stated under chapter one, rules of testate succession initially developed within the Roman legal system. These developed rules of will were later adapted by other legal systems and Ethiopia was not also an exception to this rule. Thus each legal system by adopting its own rules defines the subject will and its nature in one way or the other. Having this in mind, the writer in this part would try to show the definitions given to will by different jurisdictions and its general feature. An attempt is also made to discuss the elements of will and issues related to it. 115

4.1.1 Definition of Will One can hardly find one and clear definition of will in jurisprudence. For example, will in criminal law and tort law is defined differently from that of the law of succession. Even in the law of succession an attempt to secure one clear and precise definition of will has ended up in failure. Accordingly, different jurisdictions adopted different definitions of will. This writer tries to show some of the definitions that are given by different jurisdictions and analyze some of the important concepts included in each definition.  In English law for instance “will is a declaration of intention in a prescribed from, if any, of a person making it which he wish to take effect after his death and until such time revocable”. As it can be deduced from the definition, will in British law is firstly declaration of a person made either in oral or written form. The declaration is also not limited to the disposal of property. This declaration of intention is a simple promise or expression of his wish and it is not a binding contract. Secondly, it is the declaration of the maker only. That is, no one can make a will on behalf of another. Thirdly, it is made in the form prescribed by law. A declaration of intention not made within the formalities imposed by the law is not a will within the legal sense of the term. Fourthly, the verbal declaration or the 116

written instrument may have effect only at the death of the testator. Finally, the testator has the power to revoke it at any time before his death.  The French law, on the other hand, defines will as " a revocable instrument by which the testator disposes of his estate in its entirety or in part for the period after his death”. According to this definition a will is an instrument. It should be reduced in written form. In light of this, any verbal declaration of a person is not considered as will under French law. Secondly, the instrument is always revocable by the testator; thirdly, by the instrument a person can dispose all of his property or part of it. Thus, no limit is imposed on the testator’s power of disposal by will. Finally, it has effect upon the death of the testator. Islamic laws also define the subject will in their own ways.  For instance, the previous Indo-Pakistan law of succession “will is a declaration of intention of a Muslim man with respect to his property which he desires to take effect after his death”. This definition restricts will to the declaration, made by a Muslim. In other words, the declaration of intention of a non Muslim is not included within the meaning of will. Secondly, the testator's declaration should relate to the disposal of his property. In light of this, appointment of guardian to minor children or a direction 117

made as to his funeral is not a will pursuant to this definition. Finally, will has effect only upon the death of the testator.  The modern Morocco the law of succession, on the other hand, defines will as " an act by which the author there of creates one third of his property, a right which becomes exigible at death”. As it can be inferred from this definition, in the first place will is an act of a person like that of other juridical acts, Secondly, by performing this act or executing a will the testator creates aright to other persons up to one third of his property. This by itself makes clear that only a disposition up to one-third of a property is a will. Besides the right of a person to whom the testator made a legacy can be demanded only at the death of the testator. To get into the merits and demerits of the definitions given by these legal systems may be a wrong attempt. This is because each legislature defines the term according to the substantive policy of the country. The definition of will by each jurisdiction reflects whether a country gives maximum freedom to the testators or imposes restriction on the amount and kind of property that can be disposed by will. Besides the form in which the will should be executed has its own effect on the definitions given to will in different countries. A clear example of this fact may be drawn from the definition of Moroccans law that recognized only disposition of property up to 118

one- third as will and any disposition made above that is not a testamentary disposition having effect before the law. Is there any clear definition of will in the succession law of Ethiopia? No where is will define under the succession law of Ethiopia. Rather the provisions of the Civil Code which govern testate succession started by listing down the essential conditions of will. The nature of will, its scope and effect, can be inferred from the provisions of the code that regulate essential conditions of will especially from Arts 857-879 of the Civil Code. However, it is not proper to leave the term "Will" with- out defining it, because it creates confusion in understanding the subject easily. Thus, the Ethiopian legislature should have defined the term will when the Civil Code of Ethiopia was enacted. Do you think it is proper to leave the subject "will" undefined in the succession law of Ethiopia? Why? 4.1.2 The Features of Will It is obvious that there is a difference in defining will among different legal systems. However, will has its own general features which are recognized by all jurisdictions in one way or the other. Ethiopian law of succession also recognized the following features of will when they adopt rules that govern testate succession. 119

 The first feature of will is that it is always related to the death of a person. No one can talk and discuss about will separately from the event of death. Will is drafted as an expression of the last wish of the testator in advance because he is in fear of being suddenly surprised by death.  Will is the declaration of intention. It is a simple promise of a testator concerning matters which may take effect upon or after his death. Thus will is not a binding legal act so long as the person who made it is alive. The fact that will is a declaration of intention has a number of practical implications. Firstly, the person does not affect his power of disposing his property by making will. In spite of the fact that he makes a will and mentions some or all of his properties as the subject matter of will, he is in full liberty to dispose such property either gratuitously or for consideration or in any other way he likes. Secondly, the promise or the expression of the wish of the testator always has effect after the death of the testator. Accordingly, if the instrument executed by the testator intended to give effect before his death, that act is not considered as a will in the legal sense of the term. Besides, beneficiaries of will have no claim in the property of a testator until his death. Thus, the beneficiaries should survive the testator to derive any benefit from a will. 120

Thirdly, being a declaration of intention, properties disposed by Will may be observed by liabilities of the deceased. That is, if the testator has liabilities the will he executed in favor of one or more persons may not be invoked against his creditors. Eventually, beneficiaries of will may get some thing when the liabilities of the deceased are satisfied and if some thing remains after the satisfactions of creditors claim.  Will is always revocable. The revocability nature of will emanates from its nature of being the declaration of intention. Since will remains as a mere draft or simple promise during the testator’s life time. He is in absolute liberty to change, cancel or destruct his draft before his death.  Will is ambulatory. That is when distribution of the property of the deceased is effected the references of the will are the properties that are available at the death of the testator. The references may not be only the properties existed at the time he executed the will. This is to say will have legal effect on properties that are acquired after its execution. However, the testator is at liberty to provide to the contrary in his will.  The scope of will is not limited only to the disposition of property. 121

A person is at liberty to make a will concerning matters other than disposal of his property. A person may appoint a guardian to his minor children of give direction as to his funeral.  Will is always personal to the testator. A person may not delegate his testamentary power to which the law gives to dispose of his estate in favor of ascertained or ascertainable persons. It is one of the strict principles in jurisprudence that one can not appoint another person as his agent to make a will on behalf of him  Finally, it should be clear that the disposition of property by will is gratuitous. There is no consideration that should be paid by the beneficiary either in the form of cash or service. Questions. 1. Do you think all these features of will can be inferred from the provisions that govern testate succession in Ethiopia? Why?. 2. Try to find the relevant provisions of the succession law of Ethiopia that reflects the above stated features of will? 4.1.3 Elements of Will Will has two constituent elements. One is the intention to make it and the other is that the intention should be declared out in accordance with the form prescribed by law. Thus, modern 122

lawyers group these elements of will into two general classes. These are  Inherent /intrinsic/ elements of will and  The formal /extrinsic/ elements of will. In most jurisdictions including Ethiopia any legal act presented before a judge as " will" should be ascertained whether it has an essential or inherent element first, and then it is made in accordance with the formal requirements imposed by the law. 4.1.3.1 The Inherent /Intrinsic/ Elements of Will The inherent element of will is that which can not be altered without changing the very nature of a will and its positions before the law. The inherent element of will mainly refers to the intention to make a will. That is, the mental element which is known as “Animus testandi”. It is difficult most

to explain what constitute Animus testandi. But

authors agree that in order to say the testator had an

intention to make a will when he executed the instrument, first, the testator must understand that the nature of the act that he is engaged in is the making of will. Secondly, the testator must be free from vitiating mental disorder and should exercise his genuine free choice. Thirdly, he should have full knowledge of the contents of the instrument he executed as will.The listing of concepts that would explain the existence of

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animus Testandi may not solve the whole question that a person may raise in relation to it.

Issues may be forwarded for discussion about;  In what condition is a person considered that he understands the nature of the act he is involved in is a making of will? 

Should the instrument necessarily include the word “will”. Or statements, like, "it is my will or my testament"?



What if a person makes a will with full knowledge but because of his ignorance of the law he named it as contract?



Should the test be the name or the title given to the instrument by the testator?

Such difficulty arises in

jurisdictions that recognize a will made by hand written of a testator in the absence of witnesses. The problem is also prevalent in Ethiopia. This is because the Civil Code gives effect to a will that is fully written by the testator himself. The law designates this type of will as" holograph" will. The presence of witnesses when the testator executes the will is not a requirement for its validity. The problem of ascertaining whether the testator executes the instrument with full knowledge that he is making a will is always inherent, nevertheless Art 884 (2 ) of the Civil Code states as follows. 124

“Holograph Will shall be of no effect unless it says in an explicit manner that it is a will”.

 What is meant by "explicit manner"?  Is the name given to the instrument as “will” or “testament” unconditionally necessary for the validity of a holograph will?  What if one can clearly understand from the content and provisions of the instrument that the testator executed it to have effect after his death but he did not name the title of the instrument as will or testament? Scholars answer these questions in different ways, some say, the instrument is not valid because of lack of Animus testandi unless the testator knows and expressly mentions that the instrument is a will. Same other scholars on the other hand, argue that such instrument is valid though the testator did not mention its name as will or testament, if the real intention of the testator and the nature of the instrument can be deduced from its content. If the provisions of the instrument clearly shows that the testator makes the instrument to have effect after his death and if he includes matters that can be performed by a testament, the name given by him to the instrument is not a requirement for the validity of his will.

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The controversy on this issue can be seen from different directions which may help us to solve the problems. The argument which says that the name given to the instrument by the testator is unconditionally necessarily to know the existence of Animus testandi may not be always true. This is because, if a testator uses the technical word ‘will’ can this be self sufficient to show the nature and character of the instrument that he executed is will? What would be the consequence if the language of the instrument and other admissible evidences prove that the testator intended it to have effect before his death.. Can this instrument be accepted as a will with in the legal sense of the term, simply because the author has put the title of his instrument is a will, while it is clear that the instrument is intended to produce a legal effect during his life time? Therefore, the designations of an instrument as will by it self does not suffice to indicate the existence of Animus testandi. But its existence may be ascertained by inferring from the intention of the testator as shown by the nature of the instrument he left, by the surrounding facts and circumstances. The fact that Animus testandi relates to the testator’s being free from vitiating mental disorder and his exercise of free choice can be explained in one form or another. The instrument under discussion can be a valid will when it expresses the intention of the testator in reality and not in out word form. 126

In certain cases, therefore, one can justify the total absence of Animus testandi where the testator is under in violent insanity and executes the instrument at that time. Similar justification may be forwarded when a person executes will because he is subjected to more extreme coercsion. The third concept which explains the existence of Animus testandi along with the above two requirements is that the testator should have the knowledge of the contents of the instrument executed by him. A person may be in a position to understand that he is singing a will but if he did not know the contents, the provisions of the will may go against his intention. It is because of such practical difficulties that the knowledge of content of will become one expression of the existence of intention to make a will. From this what follows is that  How can one deduce whether the testator knew of the contents of the will executed by him? The fact that the testator is aware of the contents of the will may be proved from circumstantial evidences as well as by direct evidences. In addition to this, the law presumes the knowledge of the contents of will if a testator is of sound mind and memory, who gets the opportunity to learn its content and when the will is in his possession before execution. How ever, the validity of the instrument may be challenged on the ground of error and fraud.

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The presumption of knowledge of content of will is not equally applicable when the testator is blind, illiterate or one who does not understand the language of the will written by him. In such a case the intention to make a will is deemed to be as non existent unless the contrary is proved by satisfactory evidence which shows that the testator knew of the contents of the will. Questions 1. Do you think that the succession law of Ethiopia has rules that define the inherent elements of will? 2. According to Art.858 of the Civil Code "Where several persons make their will by one and the same instrument such instrument shall be of no effect."  What do you think about the purpose of this provision?  Did the legislator adopt this rule to ascertain that the testator's intention to make a will should be clear by making it in the separate document, not jointly with others? 

What problems will be in issue if the legislator accepts and give legal effect for joint wills?

 What is the importance of the rules enshrined in Arts 660867 and Art 876, Art 877 of the Civil Code?  What is the importance of the rules enshrined in Arts 868874 of the Civil Code? 4.1.3.2 Formal /Extrinsic/ Element of will

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The essential element of will relates to the intention to make a will. It is difficult to prove whether this element exists when the testator executes the will. This is because will has a legal effect at the death of the testator. Thus, there is no possibility of knowing the actual reality by asking the person himself when dispute arises in relation to the validity of Will pertaining the existence of the mental element. The law, therefore, invents a solution to this problem and imposes a strict formal requirement which should be followed when a person executes a will. A person should execute his will in accordance with the formalities prescribed by the law so that it may produce the intended legal effect. The formal elements of will are those elements which can be modified with out changing the very nature and essence of will 31. What imposes such formal requirements is the law. That is why the name extrinsic element is given to it. The legislature of each country imposes such formal requirement and changes when the need arise. Or imposes additional formalities that deal with the form in which the will should be executed. Though the formalities are different from one country to the other generally such formalities include signature by the testator, subscription by witnesses, authentication, registration, and others. These elements of will have a great practical importance because a will executed with out complying the necessarily formal requirement have no effect before the law. The formal 129

requirements to make a will by Ethiopian law may be dealt in fourth part of the module. Questions 1. Which provisions of the Civil Code govern the formal elements of will in Ethiopia? 2. What is the essence and content of those provisions that govern the formal elements of will? 4.2 THE NATURE OF TESTAMENTARY POWER AND ITS LIMITS Dear my distance friend;  What is meant by testamentary power? 

What are the sources of testamentary power in Ethiopia?

 Do you think the right to dispose one's property by will is recognized and protected by the constitution? 

What are the reasons given to justify the limits imposed on testamentary power by law?



What are the reasons raised against limiting testamentary power by the law?



Evaluate the nature and essence of testamentary power of a person which is enshrined in the succession law of Ethiopia?

As it is stated in the previous part of the module, one form of passing the deceased's estate to the survivor is a will which is made by the deceased. This practical importance drives scholars 130

to discuss and critically evaluate the nature of testamentary power, the limits imposed on it and the rationale behind imposing such limitation. Thus, this chapter is intended to show the different approaches of different jurisdictions concerning the above issues and the essence of Ethiopian law of succession.

4.2.1 Nature of Testamentary Power Testamentary power involves the privilege or the right to make a will. Man is allowed to control the disposition of his property after his death before centuries. This privilege to dispose property by will is a right of ancient origin. However, the nature of this right gives rise to a conflict of opinions between authorities. The discussion between authorities to define the nature of the right to dispose property by will is very much deep and interesting in common law legal system especially in the United States of America. The issue for the discussion is the question whether the right to dispose property by Will is an inherent right of man protected, by constitutional provisions where by the right to property is protected. Or whether this right is a simple statutory right subject to absolute control of the legislature?

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Many authorities of united states of America like the authorities of Washington state, hold that the right to dispose property by will is not an inherent right of a person which is protected by constitutional provisions by which the right to property is protected, The right to make a will is purely a statutory right subject to complete control by the legislature.

The high court of Washington illustrated this theory in its holding, on the case Strange.v.Stewar as follows; The right to make testamentary disposition of property is

neither a natural nor

constitutional right. Such right is derived through, from and rest of positive laws… The power of the state over the property passing by succession either it is by descent or by will is plenary … and the states right to direct dead man’s estate disposition is un limited. Some authorities of the United States of America on the other hand dissented sharply from the above theory. The authorities of Wisconsin, for instance hold, that the right to make a will is an inherent right of a person and not of statutory one. The testator’s right to dispose his property by will is his in - alienable right as his right to convey it during his life time 5. Accordingly, the right to

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make will is secured by constitutional provisions where - by the right to property is protected. Thus the power of the legislature to regulate succession of the deceased is not absolute. The legislature may regulate it only within a reasonable limit. And the legislature has no power to impair such right substantially or take it away entirely. This theory is adequately expounded by the high court of Wisconsin in its holding, on cowie V Strohmeger as follows; The right to make a will is very ancient and considered as incidental to the right to acquire property, and so one of the inherent rights guaranteed by the constitution … At the time of the adoption of our fundamental law, no right was firmly entrenched in the policy of this country, or significantly a part of common law, than that to make a will. The whole effort is to show the opposing views forwarded by different authorities. It is not to evaluate which view of the authorities is logical and reasonable. Rather in view of this, the writer is interested to look at whether the right to dispose property by will is an inherent right or whether it is a simple statutory right under Ethiopian law. 133

It is difficult to discuss whether the right to dispose property by will is an inherent right which is protected by the supreme law of Ethiopia. or not. Because whether the constitutional assembly has raised this issue or not in adopting Art 40 of the constitution is not clear from its record. Besides, up to the knowledge of the writer there is no such a case where the scope and essence of the right to property enshrined in the constitution has been interpreted in a way it encompasses the right to make a will and dispose a property. Thus, whenever the issue arises, there are two possibilities of interpreting it; 

One form of interpreting it is to recognize that the right to dispose property by will as an incident to ownership right protected by the Art. 40 of the constitution. In such a case the state will not have the power to enact laws that denies the testamentary power of a person.

 The second way of interpreting it, is to conclude that the right to dispose property by will is a simple statutory recognized and protected only by the rules of succession, not by the provisions of the constitution. In such a case the right to make a testament will be subjected to the absolute control of the legislature.

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Thus, what legal consequence would arise if the House of Representatives enact laws that would impair the right of a person to make a will and dispose his property is not clear. The question "what if the House of Representatives entirely take a way the right to make a testament" is not an issue because no amendment was made on the existing rules of succession. However, there is a possibility to discuss the subject when the issue comes out as a practical problem. Thus, to reach in the final conclusion and to answer the question whether the right to make a will is protected by the constitution of Ethiopia is too early to conclude. However, students and other legal professionals should critically analyze this issue so that they can understand the nature and essence of testamentary power within our system.

Questions  What do you think about the nature of testamentary power in Ethiopia?  Is it a constitutionally protected right or a statutory right only? 4.2 .2 Limits on Testamentary Power No where can one find envisaged an absolute and unlimited right of a person without there being a corresponding duty or certain limitation imposed on it. The imposition of such limitation may be justified by one or more reasons.

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 It may be imposed for the preservation of harmonious social relationship.  It may also be directed to protect the right from being used and abused to the detriment of the rights of others. Certainly, there are some limitations imposed on the testamentary power of a person in the succession law of different countries and to some extent under the succession law Ethiopia. The limitations made by the laws of different jurisdictions are very much related to;  the testamentary power of disposal of property and  Testamentary power of disinheriting. 4.2.2.1 Limits on the Disposition of Property A person during his life time has the right to use, enjoy the fruits of his property and to dispose it. However, these three prerogative rights of the owner are not absolute. The owner of the property may exercise the above privileged rights only in a way that it may not create any damage to his neighbor. Similarly, limitations are imposed on testamentary disposition of property by different jurisdictions. These limitations may be related to the kind of property that may be disposed by will and the amount of the property that may be transferred by testament.

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The laws of most jurisdictions made no distinction as to the property that can be disposed by will. All properties, that is, movables or immovable which are under the ownership of the testator can be disposed by will. The only requirement is the property should constitute the legal property of the testator. Properties prohibited by the law to be owned by individuals may not be disposed by the will. For example, under Islamic law those items which are declared by the Sharia to be illegal and prohibited by Islamic legislations to be owned by individuals may not be disposed by will. Such properties designated as “Haram” such as pigs and intoxicants may not be transferred to the beneficiary by will. In all jurisdictions a person is not allowed to dispose the property of another person by his will. No limitation is imposed on the amount of property that can be disposed by will under Ethiopian law. The succession of a person may be wholly testate pursuant to Art.829 SubArt.1 of the civil code. The person has a right to dispose the whole of his property by will. It is only when the person wholly or partially died intestate, that his heirs have a right to take some thing from his estate. The succession law of many jurisdictions, like Islamic countries and Louisiana, on the other hand, imposes a limit on the quantum of the property that can be disposed by will.

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In such jurisdictions a person is not allowed to dispose over the disposable share of his property by his will. In such legal systems what has been declared by the succession law undisposable is always preserved to his legal heirs. The whole rationale behind imposing such limitation is to protect the right and interest of heirs of the testator. This is the best means which is employed by many jurisdictions to protect the interests of heirs from being improperly excluded by the testator. In the succession law of Louisiana, for instance;  a person can not dispose by will more than two third of his estate if he leaves one child,  more than half if he leaves two children and 

More than one third if he leaves three or more children.

There is a substantive policy, under Ethiopian law of

giving

wider power to the testator irrespective of the interest and right of his heirs, While most jurisdiction including Islamic countries, without denying the person’s right of testamentary power disposition, protect the interest of his heirs by putting the maximum limit that can be disposed by will. This writer, however, is in favor of putting limitations on testamentary. It is not proper to give unlimited right of testamentary disposal and leave the needy heirs of the testator helpless. Nevertheless, the ground should not be the mere presence of heirs. But the economic condition, age and other 138

factors that make the heirs in need of the property from the deceased's estate should be taken into account. Thus, the very rationale of protecting the interest of his heirs may be also groundless when the heirs are excessively rich and not in need of the portion from the deceased estate. The limit imposed on testamentary power should be therefore, flexible. It should not be imposed to restrict the freedom of a person to dispose his property by will. But it should be imposed when circumstances of the case show that the heirs need some protection of the law. Under Islamic law, for example, disposition over one third is possible if the heirs give their consent. But this writer sees no importance of the consent of heirs if they are not factually in need of the estate from the succession. It is better to leave the testator to dispose his estate as he wish when his heirs are capable of supporting themselves or economically in good condition. In countries that put a limit on the disposable share, the effect of violating this rule, that is, if the testator disposes over

the

disposable share of the property by will, the disposition he made over that is allowed the law may be declared ultra-virus. The fact that a person executes a will beyond the power that the law confers to him may not render the whole instrument invalid. 139

But it affects only the disposition made beyond the disposable share of his property.

Questions 1.Are there any kind of direct or indirect limitation on the testamentary power of disposition of property in Ethiopia? 2. Do you think Art.1014 (c) and Arts.1025-1036 of the Civil Code has some effect on the testamentary power of disposition of property by the deceased? 3. What is the purpose of adopting such rules that governs claims related to maintenance that would be raised against the estate of the deceased? 4.2.2.2 Limits on the power of Testamentary Disheirsion A testator within the limit imposed by law has the right to dispose his property as he pleases. even if the will he made is unjust and un natural in so far as it is made within the statutory limits, the court may not render his will invalid, Thus, in the absence of specific legal provision that limits the power of the testator, he may exclude his heirs from sharing in his estate by devising the whole of his property to others by executing a valid will. The concept of disheirsion designates the exclusion of legal heirs from participating in the succession of the deceased by express order of the deceased in his testament, Or by his act that would totally affect the rights of his heirs. 140

This is the general rule developed in common law as well as in civil law legal systems. However, the writer has a specific interest in answering the question whether a person has such power of disheirsion under Ethiopian law of succession? Under Ethiopian law, a person has the right to disinherit his legal heirs. He may disinherit them expressly by making a will that prohibits one or more of his heirs form taking part in his succession pursuant Art.937 Sub Art.1 of the Civil Code. When an heir is expressly disinherited by the deceased the law treats him as though he died before the testator as it is stated under Art937 Sub Art.2 of the Civil Code. This in effect shows the heir losses his capacity to succeed the deceased. Because, only persons who survived the deceased have the capacity to succeed under Ethiopian law. An heir who is expressly disinherited is presumed as if he died before the opening of the succession of the deceased. Hence he is excluded from the succession of the testator. Under the rules enshrined in Art.939, a person may also disinherit his heirs impliedly. The disheirsion may be done by appointing a legatee by universal title. However a mere appointment of legatee by universal title may not imply the disheirsion of testator’s heir when he expresses in the instrument that he did not intend to disinherit his heirs at law. Besides, the appointment of legatee by

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universal title does not result in the implied disheirsion of descendants.  The only limitation imposed on the power of the testator is that he is required to give a reason that justifies the disheirsion under Art.938 Subart.1of the civil code. A testator is required to give such reason only when he expressly disinherits his descendant heirs. He is not required to give any reason when he expressly disinherits his heirs other than his descendants. Even this legal requirement that obliges the testator to give a valid reason in order to disinherit his descendants does not as such limit the power of the deceased. The law presumes the reasons given by testator to justify the disheirsion of his descendants as correct pursuant to Art.938 Sub Art.2 of the Civil Code. What is worse is that to prove to the contrary is impossible and forbidden by the law. The court has the power only to look and render decision on the issue of whether the reason given by the testator justifies the exclusion of his descendants from his succession. In course of weighting the reason, the court is duty bound by the law to assume the whole reason given by the testator as true and correct. The legislator failed to assess the actual social reality in this country. If the whole reason that is stated by the testator is always 142

assumed to be correct and this assumption of the law is irrebuttable, by producing sufficient evidence. The room is open for the testator to give good reasons that can justify his action but which are not actually true. By adopting this mandatory rule the legislature has in effect forced the court to render decisions based on false justification given by the testator which was given with intent to disinherit his heirs.  The second limitation to be mentioned is that a person may not disinherit his descendant heirs impliedly by appointing legatee by universal title. Nevertheless, there is a possibility for the testator to exclude his descendant heirs as well as ascendants from taking any thing in his succession. Because the testator has the power to disposes the whole of his property by ordering a legacy in singular title. According to Art 912 Sub Art 2 of the Civil Code

there is no

limitation as to the amount of property that can be disposed by order of legacy in singular title unless the deceased made the order in the form oral Will. The possibility for a person to dispose all of his property by ordering legacies in singular title by making a public or holograph will is open for discussion. What is more important is that a legacy ordered by singular title is considered as one of the debts of succession pursuant Art.1014 Sub Art (e) of the CivilCode. This in effect means, heirs and legatee's appointed by universal title are 143

entitled to take a property from the succession of the deceased only after the debts of succession are fully paid. Thus, if a person disposes his whole property by ordering legacies in singular title by public or holographic will, nothing remains to the heirs from the estate of the deceased. This in effect means the heirs are excluded from taking a property from the succession of the testator. Therefore, under Ethiopian law the power of the testator to disinherit his heirs other than descendants is absolute and incontestable. He may exclude them by express declaration without giving any reason that would justify this dishersion. He has also the right to disinherit his heirs other than his descendants by appointing a legatee by universal title. The testator’s power to exclude his descendant heirs is also very wide, subject to the requirements that are stated in the Civil Code. One can draw as a general remark, there fore, that Ethiopian law gives a maximum freedom to the testator leaving aside the interest of the heirs only with minimum and some time with little protection. The succession laws of other countries like the law of Louisiana and Islamic countries, on the other hand, gives a due consideration to the protection of the interest of the heirs, but without denying the right of the deceased to dispose his property by will.

Questions. 1. Evaluate the validity of the following statement

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"The testator has an absolute right to exclude his heirs other than his descendants under Ethiopian law." 2.What is the difference between tacit and express dishersion? 3.What is the difference between unworthiness and dishersion under Ethiopian law? 4. What is the effect of the rules enshrined in Art.937 and Art.939 of the Civil Code? 5. Is there any form of contradiction between Art 912 Sub Art 1 and Art 939 sub Art 1 of the Civil Code? 4.3 ESSENTIAL CONDITIONS FOR THE VALIDITY OF WILL

Dear my distance friend;  Try to enumerate the essential conditions that can affect the validity of will under the succession law of Ethiopia? 

What is the meaning and essence of "capacity to make a will"?



What are the factors that make the will of the deceased void from the very beginning?

 What are the factors that make the will of the deceased invalid in whole or in part?  Try to evaluate the formal requirements which are essential for the validity of will under Ethiopian law?

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As it is discussed in the proceeding chapter testamentary power, that is the privilege to make will emanates either from the constitution or other statutes. These laws put a clear limitation on testamentary power and declare that an order that went beyond this limitation will be invalid. However, the fact that a person acts within the limit stated in the law by itself may not guarantee the validity of his will. Because a valid

Will has to fulfill the essential conditions

prescribed by the rules of succession. A will made without fulfilling the conditions provided by law is either subject to invalidation or has no effect. The essential conditions prescribed by the rules of succession may render either the whole or part of the instrument invalid. These conditions are,  The will should be made personally in the testator in a separate document  It should be made by a person who is capable of making will; 

It should be made incompliance with certain formal requisites

 It should be made by the free will the deceased  It should be lawful and should not contravene the morality of the society.

4.3.1. Capacity of the Testator 146

A will should be made by a person capable of making it. The law gives no effect for the will that is made by a person who has no capacity to make a will. Capacity to make a will is a special capacity that should exist at the time when the will is made. If the person making the will lacks this capacity, the will is declared null and void or non-existent from the beginning. And the fact that he subsequently acquires capacity does not make his will valid, if the will was made when he was incapable of making it.  Under Ethiopian law, incapacity to make a will emanates either from immaturity of age of the testator or lack of mental capacity.

4.3.1.1 Minority Will is an act which is strictly personal to the testator. Because of this basic feature and essential condition for the validity of will , even the tutor of the minor is not allowed to make a will on behalf of the minor. To this effect there is a specific rule that restrict the tutor from making a will on behalf of a minor which is enshrined under Art.308 (1) of the Civil Code. Generally, the statutory age of capacity required to make a will is less than the age required to perform other juridical acts. Unlike other juridical acts, a minor has the capacity to make a will when he attains the age of fifteen years pursuant to Art.308 (2) of the 147

Civil Code. The law gives the capacity to make a will for minors who attained fifteen years because;  Will has no immediate effect during the life time of the minor  It is an instrument which can be revoked by the testator at any time. According to Art.308 (2) a will made by a minor before he has attained the age fifteen years has no legal effect notwithstanding that the minor has not revoked it after having attained the age of fifteen years. This is because the minor lacks capacity to make a will before he attained the minimum statutory age to make a will. If the person making the will lacks this special capacity, the will is declared null and void or non-existent from the beginning. The fact that he subsequently acquires capacity does not make his will valid.

One may not also justify the existence of "Animus

testandi" (intention to make a will) on the part of the testator, when a child of seven or ten years executes a will because of the fact that;  The child hardly understands the nature of the act he is involved in is making a will,  The child never envisage the effect of his act 

Probably he may not know the contents of the will executed by him.

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Thus it is possible to argue a child of seven or ten years old not only lacks the capacity to make a will but also his will is devoid of the inherent element for making a valid will.

4.3.1. 2. Mental Capacity It is difficult to prove the existence of mental capacity, its nature, and operation. Irrespective of this difficulty, the existence of mental capacity, its nature and operation may be deduced from the actual physical world. For the purpose of making will, lawyers deduce the existence of mental capacity differently from scientists. This is because there is no direct correlation between mental capacity to execute a will and mental disorder for the purpose of mental health.  A person who is completely detained under mental hospital in some situations, for example, in his lucid interval can make a valid will. On the other hand, a person who has never been near to mental hospital may not execute a valid will in the eyes of the law. Thus , each and every case should be considered in accordance with its own facts or circumstances. That is why lawyers assume a general normal mental standard of mental capacity and various degrees of departure from such normal standard. 149

Naturally, a person who has a normal standard of mental capacity have the capacity to make will and obviously, those who extremely deviate from this normal standard lack the capacity to make will. However, to draw a line between those persons who deviate from the normal standard but has the capacity to make Will and those who do not have such capacity is a difficult question to answer. It is an impossible attempt of the law to set up the exact standard of intellectual power as a test to mental capacity required making a will, since it is all a matter of degree. Nevertheless, most authorities agree upon the substance that should be taken as the test of mental capacity to make will. These tests are;  the testator must have sufficient and clear mind and memory to know, that the nature of the act that his about to perform is the making will,  the nature and extent of the property which is about to be disposed by will and his relation towards them. In view of this, the writer is specifically interested to deal the mental capacity required by the Ethiopian and Islamic law for the purpose of will making. For example under Islamic law, those persons who have the quality of prudent judgment (rushed) has the capacity to make will. Thus, one should be sane in order to execute a valid will.

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This in effect means a will made by an insane person is not valid under Islamic law. An insane (majnoon) under Islamic law is defined as a person afflicted by mental illness which renders him incapable of sound judgment or rational behavior. Insanity generally renders a person interdicted (hajr) without requiring the court's ruling to that effect and all his acts shall be with out effect. Under Ethiopian law, it is important to know that all insane persons did not lose their capacity to execute a will. Ethiopian law defines an insane person as one who is not capable to understand the importance of his action because he is insufficiently developed, suffer a mental disease or becomes senile as a result of old age. In appropriate cases the law assimilates those feeble minded, drinkers or habitually intoxicated or persons who are prodigals to insane person. Ethiopian law sets out three categories of persons in relation to insanity as well as incapacity. These are;  Notorious insane persons,  Non-notorious insane persons and  Judicially interdicted persons.

4.3.1.2 Notoriously Insane Persons A notorious insane person is, firstly, a person who fulfills the definition given to insane persons in general. Secondly, by reason 151

of his mental condition he is an inmate of a hospital or an institution for insane persons. Thirdly, if the person who is said to be notorious insane person leaves the institution in which he was confined, he becomes non-notorious insane, as the attribute to notoriety applies only when he is in that confinement. The insanity of the person is also deemed to be notorious when he lives in a place which has less than two thousand inhabitants and where the family of the insane or those other persons with whom he lives keep over him and restrict his liberty of moving for the reason of his mental condition . On the contrary if the family of those persons with whom the insane is living do not guard him, his insanity may not be deemed as notorious, though he lives in the place that has less than two thousand inhabitants. The effect of notorious insanity is that the juridical act performed by notoriously insane persons may be invalidated by the application made to court either by himself, by his representative or by his heirs. Similarly, a will made by notorious insane persons is subject to invalidation pursuant to Art.863 of the Civil Code. Under this rule of Ethiopian succession law, a will made by a notoriously insane person is subject to invalidation.

4.3.1.2.2.

Non-Notorious Insane Persons

Ethiopian law does not expressly define what non- notorious insanity means. But one can make vivid inferences about those persons who fall under the category of non- notorious insane 152

persons from the provisions of the law that define notorious insanity.  Firstly, non-notorious insane persons fall under the definition given to insane persons in general  Secondly, he is not an inmate of mental hospital or institution for insane persons.  Thirdly, he may be a person who lives with in the community that has less than two thousand inhabitants but his family or persons with whom he is living do not guard him or restrict his liberty of moving.  Fourthly, an insane person who lives in the commune that has more than two thousand inhabitants. /The effect of being non-notorious insane person is that a juridical act performed by him is valid under Ethiopian law. According to Art.863 of the Civil Code the invalidation of a will performed by non-notorious insane persons may not be asked by his heirs .As regards the making of will, the underlying policy of Ethiopian law is that inanes are capable to make a valid will with the exception of notorious insane persons. This rule is clearly stated under article 863 of the civil code which declares that "a will may not be invalidated unless the testator was notoriously insane at the time when he made a will." Thus,

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non-notorious insane persons have the capacity to make a will under Ethiopian law. As it is stated above, it is not the degree of their mental capacity that gives rise to the distinction between non-notorious and notorious insane persons, but other external factors which have no relation at all to mental soundness of the person. These external factors such as being inmate of a mental hospital, living with in a commune that has less than two thousand people and guarded by his family, may not in any way explain the mental capacity of a person. It is a self evident fact that most insane persons in Ethiopia fall under the category of non-notorious insane persons because of the lack of adequate institution for insane persons, and majority of them are living in towns which have over two-thousand inhabitants. All these things may urge some one to question as to the purpose of the legislature when it gives effect to a will made by nonnotorious insane persons. The rationale behind giving effect for the will executed by non-notorious insane persons may be to punish the presumptive heirs of this person who did not take care of him during his life time. Had it not been for their negligence, the person would not have fallen under the category of non-notorious insane persons. They 154

may ask his interdiction or take care of him. As it is known will has no effect during the life time of the testator. The legislature does not in any way deny the protection that should be rendered to the non-notorious insane persons by allowing the effectiveness of a will effected by non-notorious insane persons.

4.3.1.2.2.1. judicially Interdicted Persons Under Ethiopian law, courts may pronounce interdiction of an insane person where his health and interest so requires or when the interest of the presumptive heir so requires . The courts in Ethiopia may also pronounce the interdiction of infirm persons because of their physical disability, their inability to govern themselves or administering their property Judicially interdicted persons may not make a will after his interdiction has been declared pursuant to Art 368 (1) of the Civil Code .However, as regards the validity of wills executed by interdicted persons before his interdiction. Ethiopian law takes a different stand from the law of other countries. This is because, a will made before the pronouncement of interdiction is valid in Ethiopia as it is stated under Art 368 Sub Art 2 of the Civil Code. Mental capacity and its test which most legal systems adopted is not the yardstick for capacity to make a will under Ethiopian Law. This is because a person who is declared interdicted by reason of his physical disability is denied the capacity to execute 155

will. But a non-notorious insane person who may not understand the nature of his act has the capacity to leave a valid will. Generally, Ethiopian law gives effect for the will executed by insane persons whose insanity is non-notorious. One may argue against this, because the will lacks the "Animus testandi". A non-notorious insane person in the extreme case may not understand the nature of his act. But the law gives effect to it because it serves as a punishment to his heirs for not asking for his interdiction or taking care of him.

4.3.2.

Personally Executed and Based on Testator Free Will

4.3.2.1. Personally Executed by the Testator One of the basic features of Will is that it is always personal to the testator. A person may not delegate his testamentary power to whom the law gives to dispose of his estate in favor of ascertained or ascertainable persons. It is one of the strict principles in jurisprudence that one can not appoint another person as his agent to make a will on behalf of him. This basic principle has been enshrined in Art 857 of the Civil Code. According to the rules of Art.857 of the Civil Code a will has to be executed personally by the testator, more specifically;  A will is an act which is strictly personal to the deceased. 

Any form of agreement whereby a person grants to another person the power to make a will on his behalf is null and void. 156

 Any form of agreement whereby a person grants to another person the power to modify a will on his behalf is also null and void.  Any form of agreement whereby a person grants to another person the power to revoke a will on his behalf

has no

effect. 

A person may not entrust a third person with the task of determining how and on whom his succession is to devolve.

The succession law of Ethiopia not only demand a will be executed by the testator personally, it also obliges that the will of one person to be made by a separate document. According to Art.858 of the Civil Code where several persons make their will by one and the same instrument, such instrument shall be no effect. 4.3.2.2

Will be executed based on the free will of the testator

A will made by the testator under the influence of force lacks the inherent element of will and hence it has no effect in the eyes of the law. This basic principle has been enshrined under Art 867 of the civil code. Moreover, whenever the will is made in favor of a person due to the excessive influence of the beneficiary, it will be subjected to the revision of the court. The provisions of the civil code enshrined in Arts.868- 875 of the Civil Code govern the situation where a Will made by undue influence can be either invalidated or reduced by the court. From 157

these and other rules of succession, free will of the deceased is one of the essential conditions for the validity of will.

4.3.3 Compliance with Formal Requirements 4.3.3.1

General Introduction

For a will made by a person capable to be valid, the formality requirements provided by the law should be complied with. In the modern legal systems, a will may be made in written form or by oral declaration (non-captive will). The legislatures of different jurisdictions have the power to regulate the form by which the will should be made. The same holds true for the Ethiopian legislature. Formal requirement has a great practical importance under Ethiopian law, since no value is given for a Will executed without complying the formalities prescribed by law. In the succession law of some countries, for example in countries that enforced the traditional Sharia law, the Sharia does not prescribe any special form for the making of will. Any word, indeed signs may be used provided that they clearly indicate the testator's intention that a property should pass to the legatee at death. Pure oral declaration may be also sufficient to make a will. However, when one comes to the question of proof, the oral declaration or any sign that precisely and sufficiently show the 158

intention of a testator may be proved by the testimony of two male adult Muslims who were present at the time when the person was making the will, is required. This in effect shows, an oral declaration made by a person with the presence of the legatee may be a valid will but the legatee may not enjoy the entitlement from the will since he can not prove whether such oral declaration is made by the testator or not. However, modern Islamic legislations prescribe a strict formal requirement to make a will. No uniform laws are enacted that regulate the form in which the will should be executed. Each country enacts special form for the making of will. Under Egyptian law, for instance, a will should be made by special document written and signed by the testator or supported by official documents. Under Iraqi law, on the other hand, the formal requirement needed for the making of will is a document signed by the testator or stamped with his seal or thumb print. The Iraqi law also provides another requirement, that is authentication of the document by a public notary when the property to be disposed by will is an immovable property or a movable property the value of which exceeds five-hundred dine .These modern Islamic legislations give no effect for oral will. They only recognize the existence of written form of will.

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Under Ethiopian law of succession, on the other hand, both written and oral wills are equally valid provided that they are made in compliance with the requirements prescribed by law. There are three kinds of wills pursuant to Arts 880 of the Civil Code of the succession law of Ethiopia. These are;  Public will and  Holographic wills are written and, 

The third one is oral will

4.3.3.2

Public will

According toArt.881 of the Civil Code, a public Will should be written by the testator himself or by other person under the dictation of the testator . Dictation implies that what the other person writes should be the words which come out of the testator himself. A public will also should be read in the presence of four witnesses who are capable to read, or to hear what is read and understand the language in which the will is drawn up in accordance with the rules stated under Art.882 of the Civil Code. When the will is made in the presence of a registrar or a notary in discharge of his duty, it is enough if it is made in the presence of two witnesses pursuant to Art 883 of the Civil Code. Finally, it is important to know that a public will should mention the 160

fulfillment of such formalities, signed by the testator and witnesses without delay.

4.3.3.3.

Holograph Will

According to Art.884 of the Civil Code, a holographic will is a will fully written by the testator himself. Each and every word or provision of the will should be written by the hand writing of the testator. Moreover a holographic will should explicitly state that it is a will. When the instrument has more than one leaf, each and every leaf should be signed and dated by the testator. When a holographic will is type written, it should be type written by no other person than the testator himself and a hand written indication must be there on each leaf pursuant to Art.885 of the Civil Code. Finally a holographic will made by a person who is illiterate and not knowing the language in which the will is drawn up has no effect before the law pursuant to Art.886 of the civil code. Pursuant to Art 887 of the Civil Code both public and holographic Will should show the date, month, and year on which it is made. This is important, because it enables us to deduce whether the testator is capable or not when he executed the will. It is equally important to decide which of the will executed by the testator should be performed in case there is a divergence between 161

them .When one makes a public or a holographic will, all the formalities should be observed. The effect of missing one requirement renders the whole instrument ineffective.

4.3.3.4.

Oral will

It is a verbal declaration made by a person who feels that his death is imminent pursuant to Art.892. of the civil code. It should be made in the presence of two witnesses. But the law limits the kind of disposition that can be made by oral will and this will be dealt under the six part of this chapter. Ethiopian law imposes a strict formal requirement for the making of will. The failure to observe such formal requirement will make the will of the testator null and void. Because observing the formal requirements is one of the essential condition for the validity of will.

4.3.4 Lawfulness of Will A person who is capable under the law to make a will may make in a prescribed form. However, his will may not be valid and effective if its provisions are not lawful and contravene the morality of the society. There is no any difference as to the question of morality and lawfulness of will provisions in the succession law of many countries and the succession law of Ethiopia. 162

For instance, under Islamic law, a legacy is null and void if it contravenes the Sharia. i.e. a will made for illegal purposes, such as for the promotion of gambling or encouragement of sexual immorality is null and void . In the modern Islamic law also it is a condition for the validity of will that it should not be made in favor of something forbidden by law. Similarly, under Ethiopian law, the provisions of the Will which are contrary to morality or the law are null and void pursuant to Art 866 of the Civil Code . The law requires each and every provision of the will to be lawful. The provision of a will should not contravene the morality of the society to have effect before the law. However, the nullity of the illegal or immoral provision in the Will do not entail the nullity of the whole provision or instrument unless the intention of the testator is clear from the instrument. There is a necessary connection between execution of the provision which is null and other provisions. From this it follows that a Will left by the deceased may be ineffective as a whole under Ethiopian law;  When all of the provisions are illegal or immoral, or 

When the intention of the testator is clear that there is a necessary connection between the execution of the illicit provision which is null and other provisions.

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Thus, the underlying policy of Ethiopian law is that, the lawfulness of Will provisions is one of the conditions for the validity and effectiveness of the Will.

Questions 1. What is the purpose of adopting the rules enshrined in Arts 868-875 of the Civil Code? 2. What is the effect of will made

without compliance with

the formal requirement prescribed by law? 3. What is the essence of Art 886 of the Civil Code? 4. How can you understand and interpret the rules stated in Art 884 (1) of the Civil Code?

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4.4 CONTENTS AND INTRPRITION OF WILL Dear my distance friend;  What are the matters that a testator can deal by his will?  What is the effect of making legacy by universal title?  What is the effect of making legacy by singular title? 

What are the acceptable principles of interpreting will provision?

4.4.1 Contents of Will The whole study before this chapter has made the fact clear that any person who has the capacity can leave a valid will. The law of succession gives due consideration for such instrument or oral declaration .Naturally, the question that comes following this is what are the matters that a person can deal with by his will? Under the succession law of Ethiopia a person can deal the following matters by his will. The most common transaction that a person can deal by his will is the disposition of his property. Under Ethiopian law of succession a person may dispose his property either  By appointing a legatee by universal title, or 

By order of a legacy by singular title

According to Art 909 of the Civil Code, person may also deal with matters other than the disposal of property by his will .i.e.

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 A testator may disinherit one or more of his legal heirs by his will.  He can constitute endowments, or trustees,  Appoint a guardian to his minor children.  He may give a direction as to his funeral.  He may also do other juridical acts that the law acknowledges to have a juridical effect after his death. It is true that a person under Ethiopian law may make his will conditional. The condition may relate to the happening of an uncertain event or to regulate the manner of conduct of the beneficiary. Having stated the different matters that the person can deal with by his will, and attempt will be made to give short and precise explanation about different dispositions which can be made by the testator and the conditions imposed on will.

4.4.1.1. Legacy by Universal Title Dear my distance friend;  What is the essence of a legacy by universal title?  What would be the status of the beneficiary of legacy by universal title? 

How do you understand about the meaning and enforceability of Art.915 (1) and Art.939 (1) of the Civil Code?

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A legacy by universal title is defined by Art912 (1) of the Civil Code. Pursuant to this provision legacy by universal title is a testamentary disposition whereby a person calls one or more persons to receive the full or bare owner-ship of one whole or the portion of his property . According to this definition a legacy by universal title;  First is a testamentary disposition of property.  Secondly, this disposition should entitle the beneficiary the full or bare ownership of property. Full ownership according to this provision includes the three basic rights over the property. That is the power to use (usus ), to collect the fruit (Fructus) and to dispose (abusus).Bare ownership, on the other hand, is ownership right that has only the power to dispose but has no power to use and to collect the fruits.  Thirdly, the full or bare ownership should refer to the whole or portion of testator’s property. This means, a person who has an intention to assign a legacy by universal title, should call his beneficiaries to receive the full or bare ownership of the totality of his patrimony or part of his property. The testator must use words like,the whole of my property, half of my property, one third of my property, and the like. The testator who wants to make a legacy by universal title should not mention the name of an identified object of the deposition. When the disposition made by the will of the deceased is a legacy by universal title the reference should not be a single identifiable property.

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The reference should be made to the entire testator’s property or to that of a part forming the entirety. This in effect means the share and the object of legacy made by universal title may be not known before the liquidation of succession. A legatee appointed by universal title is assimilated to the heirs of the testator for all practical purpose. According to Art.915 (1) of the civil code, a legatee appointed by universal title is considered as one of the heirs of the testator unless the testator stipulates to the contrary in his will. This in effect means that;  He may be entitled to the whole property in the absence of legal heirs of the deceased ,or 

Where the deceased is survived by heirs, he maybe entitled to a portion equals to that of the share of one of the heirs of the deceased. This principle has been enshrined under Art.915 (1) and (2) of the Civil Code.



The legatees appointed by universal title are entitled to the deceased’s estate only after the payment of other debts and legacy by singular title.

The issue that should be dealt seriously is ; the relationship that exists Between Art.915 (1) of the Civil Code that declared, "Unless otherwise expressly provided by the testator, a legatee by universal title shall be assimilated to an heir- at law " and Art. 939 (1) of the Civil Code that stated, "Unless otherwise expressly provided, the appointment of a legatee by universal title shall imply the disheirsion of the relatives of the testator if they are of the second, third or fourth relationship 168

Some legal professionals argue there is a substantial contradiction between the two provisions .While others say, the intention of the legislature stated under Art 915 (1) of the Civil Code is to assimilate a legatee by universal title with the descendants of the testator not with his ascendants and their representative. The intention of the legislator has been clearly stated in the rules that are enshrined in Art.939 Sub Art.2 and 3 of the Civil Code. Thus, they argue the contradiction between the two provisions is an apparent contradiction, not of in their substance.

Questions 1. Do you think there is a conflict between Art 915 (1) and Art 939 (1) of the Civil Code? 2. If there is a conflict, is it an apparent conflict or a substantial conflict? 3. What would be the best way of interpreting and enforcing the two provisions?

4.4.1.2 Legacy by Singular Title A legacy by singular title is a concept employed in the succession law of Ethiopia without being

defined. To this effect Art 912 (2) of the Civil

Code simply declares any other disposition other than legacy by universal title is a legacy by singular title. What one can deduce from this provision is that;

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

Legacy by singular title is any testamentary disposition where by a testator calls one or more persons to receive the full or bare owner-ship of one or more identified property from his estate.

 The object of legacy made by singular title should be distinctly named and mentioned in the will out of all other properties of the deceased.  Besides, when the testator stipulate that a legatee shall have only the right to use and collect the fruit of a certain property as it is stated under Article 917 (3) of the Civil Code, this property my be designated as a legacy made by singular title. There is similar understanding and interpretation for legacy in singular title in the succession law of other jurisdictions. For example, under Islamic Law particular bequest, which is equivalent to legacy by singular title, consists of a disposition of an identified property from all other properties of the testator. The heirs and legatee's appointed by universal title are entitled to the deceased’s estate only after the payment of legacy by singular title. This is because a legacy by singular title is considered as one of the debts of the succession of deceased pursuant to Art1014 (d) of the Civil Code. It is important to note the impossibility of appointing a legatee by universal title in verbal declaration or Oral will. A person may not also order a legacy by singular title if the value of each legacy exceeds five hundred Birr pursuant to Art 893 (b) of the Civil Code.

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But he has the power to order so many legacies if the per value of each legacy is not more than five hundred Birr. The same is true for dishersion. A person may not disinherit his heirs by oral will. Therefore, under Ethiopian law the matters that a person can deal by oral will are very narrower than the matters he can deal by public or holograph Will. Finally one may set out the distinction between legacy by universal title and legacy by singular title. The basic distinction is that;  Incase of legacy by universal title the reference is made to properties that would exist at testator’s death pursuant to Art 911 of the Civil Code. That would be portion that is ready for distribution. This in effect may include the properties that are acquired after the deceased executed his will. 

While in case of legacy by singular title, the testator should refer to the property that exists at the time when the deceased made the legacy by his will. Not only the testator should distinctly mention the object from others but also the subject matter of

legacy by

singular title should be in the ownership of the testator at the time when he makes his Will.

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Question 1. If the specific property that was made the subject of a legacy by singular title did not exist at the time when the succession of the deceased is opened, what would be the fate of the legatee by singular title? 2. Why a legacy by singular title is considered as the debt of the succession under Ethiopian law?

4.4.1.3 Conditional Legacies (Bequest) Conditional legacy as Atkinson defined is "a legacy which takes effect or continues to have effect according to the happening of some future events” These events may be;  Ordinary events which may be brought by the beneficiary, or  They may depend up on natural forces. The happening of the event in the ordinary case is not within the control of the testator .One who tries to study about conditional will in jurisprudence including Ethiopian law faces one or more problems. The principal problems may be;  Firstly, identifying whether a certain provision of the testator itself can be regarded as condition of the enforcement of the will or the events inducing a person to make such a will is difficult.

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 Secondly, whenever it is taken as condition, whether

the

condition of will is a condition precedent or condition subsequent should be dealt seriously.  The third one is the validity of condition itself should be a point of discussion, and  The last

one is what effect has an invalid conditions on the

validity and effectiveness of the will or legacy should be dealt. Ethiopian law uses the term conditional legacy which according to Art 916 of the Civil Code refers the condition imposed on both in legacy by universal title and in legacy by singular title. The rule enshrined in this provision used the term ;  Suspensive condition to designate condition precedent ,and  Resolutive condition to designate condition subsequent. 4.4.1.3.1.

Condition and Motive

The problem of identifying whether a certain declaration of a person is a condition for effectiveness of his will or the circumstances, event or motive that derives a person to execute his will is a crucial issue in most jurisdictions. This problem of distinguishing a motive or event that induces a man to make a will from that of conditions imposed by him for the effectiveness of his will does not have a definite standard and test to go through it.

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But the judges should deal with the problem by using the language of the will and the nature of the subject matter. Once the judge decided the provisions imposed by the testator are conditions for the effectiveness of the legacy, his next job is to identify whether such condition is a condition precedent or condition subsequent.

4.4.1.3.2.

Condition Precedent or Suspensive Condition

A condition is deemed to be condition precedent when the occurrence of an event or fulfillment of some thing by the beneficiary is important for the effectiveness of the legacy. In such condition the legatee may take the legacy entrusted to him only if condition stated by the testator comes to effect. Similarly, Islamic law used the term contingent bequest to express the above condition precedent. The "Sharia" uses the word “MuAlla ’ala’ shart” to express the concept which means suspended up on condition. The idea is that the legacy may not become operative unless and until the specified events take place or a specified condition is full-filled.

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4.4.1.3.3. Condition Subsequent or Resolutive condition. Condition subsequent is a condition in which the non happening of an event or breach of some thing results in a defeat on the estate already vested. In this case the happening or non happening of the event puts an end to the right of the beneficiary on the property that is acquired by will. Under Ethiopian law, legacy made under a condition that the legatee does not do a specified thing or shall continue to do specified thing is deemed as resoluative condition. But the testator is at liberty to put it expressly as suspensive condition. Conditional legacy is a legacy coupled with conditions which seek to regulate either the manner in which the property given to the legatee should be enjoyed or about the general conduct and activities of the beneficiaries. Under Ethiopian law the condition imposed by the testator whether it is suspensive or resolutive may not have effect unless the conditions imposed by the testator are valid. For instance, condition or any burden imposed on will is not valid unless it is possible, lawful and moral. When the conditions attached or imposed are impossible to perform or contrary to the law or to the morality, thus the law nullifies such conditions and the legacy is deemed to be absolute.

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That means the law takes it as if no condition is attached to the legacy and the beneficiary is entitled to the right stated in the will. Similarly, in most jurisdictions for example under Islamic law, conditions stated by the testator may have effect if they are valid conditions. It is only when the conditions are deemed valid that they may be enforced against the beneficiary or alternatively their violation will for-feature of the legacy. For conditions to be valid under Islamic law, they should not be impossible to fulfill and should not contradict with the Sharia or other Islamic legislation. Conditions which are contrary to the purpose of Sharia or forbidden by the modern Islamic laws may be nullified and the other provision of will remains effective as though it was made without any conditions attached to it. 4.3.4. Interpretation of the Provisions of will Interpretation may designate the avoidance of uncertainty or ambiguity of the language used in the instrument. There is no such a major difference between the succession law of Ethiopia and the succession law of other jurisdictions as to the principles of interpretation of will provisions. This is because ;  First in most legal systems the need to interpret will provisions arises only when the provisions of the will are uncertain or ambiguous because of the language used by the testator. 176

This in effect means, when the terms of the will are clear the court is not allowed to depart from the true intention of the testator expressed therein under the disguise of interpretation.  Secondly, when doubts arise or when the terms of the will arte uncertain or ambiguous, the court should interpret it in conformity with the presumed intention of testator to be deduced from the instrument itself and other circumstances.  Thirdly, the law of succession puts down some presumptions which direct courts in the interpretation of will provisions. For instance, under Art.911 Sub Art.1 of Ethiopian civil code where testator used such expression like “my property” or “immovable property” and the like. In order to give a meaning to such term the law presumes that the reference is made not to that of the time of making the will but the property of the deceased that he had at the time of his death. However, proof to the contrary is possible to rebut such presumptions pursuant to Art 911 Sub Art 2 of the civil code.

Questions 1. How can you identify whether a certain provision of the will itself can be regarded as a condition of the enforcement of the will or the events inducing a person to make such a will ? 2.How can you differentiate whether the condition of will is a condition precedent or condition subsequent ? 3.

How can you evaluate the validity of condition imposed on legacy?

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4.

What is the effect

of an invalid and illegal conditions on the

validity and effectiveness of the will or legacy ?. 4.5 REVOCATION AND LAPSE OF WILL Dear my distance friend,  What are the reasons for the failures of will?  What is the meaning of revocation of will?  What is the meaning of lapse of will?  Try to enumerate the effect of revocation and lapse of will under the succession law of Ethiopia?

A valid will which is executed by the testator may fail to give effect at the testator’s death.  The failure may come as the result of the subsequent act of the testator.  The failures may also arise from the omission of the testator to perform acts listed out by the rules, succession after making the will.  The happening of events which are beyond the control of the testator also brings such failure of will. In this chapter, thus, an attempt is made to discuss with you the causes that bring the failures of a valid will. Mostly, the potential capacity of a will to have effect at the death of the testator terminates when the will is revoked by the testator or when the will lapses.

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4.5.1 Revocation of Will

Different scholars have defined the term revocation of will. Nevertheless, they never defined the term in one and the same manner. In Blacks Law Dictionary revocation of will is defined as follows; Revocation of will is recalling, annulling or rendering inoperative of an existing will by some subsequent act of the testator which may be, by making a new will inconsistent with the terms of the first or by destroying the old will or by disposing of the property to which it is related or otherwise.. According to this definition revocation of will is related to the subsequent act of the testator that terminates the effectiveness of will at his death. Some other scholars, on the other hand, define revocation of will as including the termination of effectiveness of wills by the operation of the law (Lapse of will). One among these scholars Thomas Atkinson defines it as follows; “Revocation of will is the termination of potential capacity of will to operate at the testator’s death either by the latter act or by the operation of the law”. In spite of these differences, this writer uses in this paper the term revocation as defined by Black’s Law Dictionary. This is because it defined it in the way it is used in the substantive laws of the Ethiopian civil code, displaying that revocation designates bringing to an end of the effectiveness of a will by the testator him self. 179

Revocation is one of the main features of will. True revocation of will has its own characteristics which are recognized by the succession law of many jurisdictions including Ethiopia. These are,  Firstly, revocation always presupposes the existence of a valid will since one can not make a will ineffective that has never existed in the eyes of the law.  Secondly, only a person who executed the will has the authority to revoke it. No person other than the testator has the power to revoke a will. This power of revocation is strictly personal to the testator.  Thirdly, revocation needs the capacity of the testator under the law. If the testator loses his capacity after executing the will, he has no power of revoking it under the law.  Fourthly, the power of the testator to revoke his will may not be affected by his promise or agreement not to revoke it. The power to revoke a will is always preserved to the testator, though he stipulates to the contrary.  Finally, revocation may refer to the whole instrument or oral declaration made by the testator or to the part of the instrument. This is to say, a testator may revoke the entire instrument or only one or more provisions from his will with out affecting the remaining part of the will.

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According to Arts 898-900 of the Civil Code of the succession law of Ethiopia a testator is at liberty to revoke his will either by his express declaration or by his subsequent act that would imply the defeat of the effectiveness of his will.

4.5.1.1 Express Revocation Under Ethiopian law express revocation is made when;  The testator explicitly declares that he revokes his will in its entirety or a provision there from, pursuant to Art.898 (1) of the civil code. According to this provision, the testator can expressly revoke and declare that he revokes his will either by executing another instrument in the same form or in the will it self. The testator should made all this acts with the intention to revoke his will or (Animus Revocandi). 

Ethiopian law of succession considers making of another will which can not be executed together with the provisions of a previous will as express revocation pursuant to Art.898Sub Art2 of the civil code.

This method of revoking will by executing another will that can never be performed with the provisions of previous will is treated as implied revocation in the succession law of other countries. However, the making of new will does not show the revocation of earlier will, whether express or implied, unless the two wills are mutually inconsistent and can never be effective together at testator’s death.

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The instruments executed by the testator may be mutually consistent and enforceable. In such a case there is no revocation of the earlier will. A mere making of a new will by the testator does not imply the revocation of the previous will. There will be a situation where instruments may are be partially in consistent. In such a case the latest will executed by the testator may be completely effective while the earlier will may have effect only to the extent of those provisions which are not in consistent with the later pursuant to Art898 (2) of the Civil Code. There might be also a possibility where the two instruments are mutually inconsistent; this in effect results in the revocation of the whole instrument of the previous will. It is not an easy task to find whether the later instrument revokes the previous will. In such a case one has to read the two instruments together and decide whether they are mutually in consistent or can be enforced together. The judge will decide whether the testator revokes his will by executing another instrument which is inconsistent with the previous one by evaluating the content of the two provisions. Thus, in any case this seems to be a tacit revocation of the first will by the later since it is not envisaged explicitly and is only possible by making an inference there from. There fore, the meaning given to express revocation under Art.898 (2) of the civil code is improperly extended by the legislature of Ethiopia so as to include tacit revocation of the instrument by making another will. 182

Express revocation of will needs the intention of the testator to revoke his will and some formal requirements prescribed by the law. That is, the testator’s intention to revoke his will should be declared out in accordance with the formalities required to revoke a will. Under Ethiopian law, the form required to revoke a will is that it should be made in any one of the forms of making a valid will. The testator is not obliged to flow the same form that he followed for the execution of his will. For instance, he is not forced to revoke a public will by fulfilling the formalities required to make a public will. It is possible, there fore, to revoke a holograph or public will by observing the formalities required for making an oral will pursuant Art .898 (1) Civil of Civil Code. That is, a person can successfully revoke his public or holograph will by oral declaration made in the presence of two witnesses and vice-versa. For instance, to make a will that disposes immovable property under Iraqi law, it should be made in writing authenticated by public notary. And the same formalities are needed to revoke this will. Thus, it is not proper like that of Iraqi law to impose a form on revocation as that of the form required to make a will. It is enough if a testator revokes his will in a form that can clearly show his intention of revocation of his will.

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Whether the revocation is made by oral declaration or in writing the law should consider whether his declaration or written instrument clearly shows the testator’s act of revoking his will rather than the form.

4.5.1.2 Implied Revocation Implied revocation is a method of revoking will by performing subsequent act that would terminate the effectiveness of a will executed before. In the succession law of other countries one means of impliedly revoking a will is executing another will which is inconsistent with the provisions of the previous will. This is considered as express revocation of Will under Ethiopian law. The succession law of Ethiopia recognizes another method of impliedly revoking Will. The first way of impliedly revoking will is the material destruction of a will or a cancellation of a provision there in by the testator. Article 899 (1) of the Civil code States “The testator may revoke his will or a provision contained there in, by materially destroying or by tearing or by canceling the contents thereof, in a manner that shows sufficiently the intention of revoking or modifying his will”. According to this provision a material destruction can imply the revocation of his will provided that the three requirements are fulfilled.  Firstly, the testator can revoke a will by destroying or tearing the instrument or by canceling the contents in the instrument.

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 It is only the testator and no other person whether the testator give his consent or not can revoke the will in such a way.  Secondly, there must be some physical act of the testator. That is the testator should do any one of the acts stated by the law. He should destroy, tear or cancel the contents of his instrument. However, how much grave the destruction should be is arguable. But in any way the testator should do any one of the actions.  Thirdly, the testator should do any one of the physical acts with the intention to revoke his will. There must be a sufficient relation between the physical act done by the testator and the mental condition of the testator to revoke his will. Thus when a person destroys, tears, or cancels his will by mistake, his will remains effective and the act may not show the revocation of the will. To know the testator's intention is difficult to infer. Because of these the law always presumes the intention to revoke or "Animus Revocandi" when the testator did any one of the actions pursuant Art.899 (2) of the Civil Code. Nevertheless, this presumption is not irrefutable and proof to the contrary is always possible. In addition to this, when the will is destructed by any one of the acts stated by the law, the law presumes the destruction or cancellation is made by the testator. This presumption is also reputable presumption. The fact that the testator destroyed this instrument leaves the beneficiary without evidence that can be produced in the court. 185

Thus, the effect is that the beneficiary may not prove the existence of the right or a will made in favor of him. This in effect means the destruction of the will by the testator terminates the potential capacity of his will to give effect at his death. And this may be properly designated as implied revocation of will. This impliedly puts an end to its effect because the beneficiary has nothing to present to prove his right. The second way of revoking a will impliedly under Ethiopian law is the alienation of the property bequeathed by the testator willingly whether in whole or in part pursuant to Art 900 of the Civil Code. This revocation is absolute under Ethiopian law. The fact that the property alienated comes again to the ownership of the testator may not revive the will revoked as it is stated under Art 900 (2) of the Civil Code. The revocation of the will that revoked the first Will also does not revive the Will that was revoked first. The succession law of many jurisdictions has a similar position with the succession law of Ethiopia For example, under Islamic law, when the bequeathed property is affected by subsequent act of a testator and which could no longer pass to the beneficiary, the law designated it as implied revocation. This implied revocation may come when the property bequeathed is destructed or consumed by the testator. The alienation of property by the testator either by sale or by gift or by any other means is also an implied revocation of Will under Islamic law.

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In the succession law of some countries, any attempt to alienate the property by the testator is considered as an implied revocation of will. According to most authorities, the very offer to sell or to give away the property to other person, though not resulted in the loss of testator’s ownership over the property, actually it indicates the intention of the testator not to pass it to the beneficiary at his death. This justification may be challenged by raising different issues. What if a testator attempted to destruct or consume the subject matter of a will but later changes his mind and preserve it? Secondly, what if after making an offer the testator regret from his act? The succession law of Ethiopia does not mention the effect of any attempt by the testator to alienate the legacy on the effectiveness of his will. An attempt, in the opinion of the writer, may not fully and clearly indicate the intention of the testator to revoke his will. Ethiopian law is silent as what consequence would be when the subject matter of property is destructed or consumed by the testator. The same is true as to the substantial change in character of property bequeathed. However, the court before which a case brought can analogize this with that of property alienation and consider these factors as implied revocation of will. This is because if the property bequeathed is consumed or destructed or changed completely to another thing, there would be nothing left to be given to the beneficiary at testator’s death.

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4.5.2

Lapse of Will

Dear my distance friend,  What is the meaning of lapse of will? 

What are the factors that

render the will to lapse under the

succession law of Ethiopia? 

What is the effect of the lapse of will?

The term "Lapse" in the ordinary language is defined as failing from the original condition. Frequently, it implies a slight or gradual failing. However, lapse in jurisprudence is defined. “As the termination or failure of a right or a privilege through neglect to exercise it with in some limit of time or through failure of some contingence." A person should survive the testator in order to benefit from the will. Under Ethiopian law a legacy made in favor of a person lapses;  When the beneficiary died before the testator under Art.907 of the Civil Code. Nevertheless, the law allows the representation of the beneficiary by his heirs where the legacy is made by universal title pursuant to Art.908 (a) of the Civil Code. Besides incase of legacy by singular title, representation is possible only where the testator has no heirs and when the property bequeathed is to devolve up on the state as it is stated in Art 908 (b) of the Civil Code.

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Ethiopian law also enumerated other conditions that cause the lapse of will other than the one state above.  A legacy whether it is made by universal title or singular title lapses when a child is born after the date on which the will is made and when such child accepts the succession pursuant to Art.904 of the Civil Code. How ever, the court may give effect in part to the legacy made by the testator pursuant to the provisions of Art 905 of the Civil Code. In any case, the child of the testator should receive three fourth of the estate of the deceased.  The legacy made in favor of a spouse lapses where the marriage is dissolved through any cause other than death. The law also puts some distinctions as to the lapse of oral will and written will.  An oral will lapses if three months have passed after it has been made and where the testator is alive in such a day pursuant to Art 902 of the Civil Code. 

A holographic will on the other hand lapses when it is not deposited with third party or in court registry within seven years after it has been made pursuantArt.903 of the Civil Code.

According to Art 891 (1) of the Civil Code a public will to be deposited with third party, notary or court registry. But it is not expressly stated that whether the failure to deposit public Will, may result the lapse of such a Will. The effect of lapse is not clearly indicated by Ethiopian law. However, lapse of will results in the failure of the instrument or a

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provision there of to give effect upon the testator’s death under the laws of other countries. I think the same effect may be envisaged to the effect of the lapsed will under Ethiopian law. That is, a lapsed will fails to give the intended legal effect at the death of the testator.

Question 1. Does a public will remain effective though it is not deposited in notary or court registry? 2. Do the judges invoke a situation that makes the will lapse by their own initiative and reject to give effect for a lapsed will? Or is it a situation that should be raised only by the parties? 3. Who has the burden to prove that a will has been lapsed?

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CHAPTER FIVE THE BENEFICIARY AND PROOF OF WILL Dear my distance friend, This chapter is designed to discuss with you about;  Those persons who can qualified as legatee of will  The requirements to take the legacy  The proof of will

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5.1

General Principles to take by will

Dear my distance friend, 

What are the requirements to be the beneficiary of will?

 Is there any difference between capacity to succeed and requirements to be a beneficiary of will? 

Can a legal heir qualify to be the beneficiary of a will?

Naturally, a valid will neither revoked by the testator nor lapsed gives effect upon or after the death of the testator. It is true that the person named as beneficiary of a will can claim the right emanating from the will only at the death of the testator. Indeed, the fact that a person is the named as a beneficiary in the will may not necessarily qualify him to the entitlement of rights that emanate from the will. The law of succession sets out a number of conditions for a person to make a valid will and at the same time the law equally puts some prerequisites for a person to be taken by will as beneficiary. This chapter is intended to deal with the general requirements to benefit from a will both under Ethiopian law & the Law of other countries.  What are the general principles which are useful to determine the beneficiary of Will?

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In most jurisdictions, including Ethiopia, the beneficiary of Will may be either a natural person or a legal person. The beneficiary may be an individual or individuals, group of persons, association or organization. The most fundamental condition imposed by most jurisdictions, with out excluding Ethiopia , is that, for a person to benefit as legatee from the will, he should exist at the time of the death of the testator. In other words the beneficiary loses the capacity to take by will if he did not survive the testator. “Existence” in this context does not only designate factual existence. But it is used to show the existence of a person either in fact or in law. What is required is, therefore, the factual or legal existence of a person at the time of testator’s death. To mention an instance, a child in the wombs of the mother has the legal existence under Ethiopian law. And therefore, he is entitled to take a legacy that is bequeathed in favor of him by will. An issue is forwarded to discussion as to the position of the law, especially Ethiopian , when the testator and the beneficiary died at the same time by the same accident or otherwise and when it is impossible to know whether the beneficiary survives the testator. Ethiopian law answers the question by denying each person to take part in the succession of another. Thus, when the testator and beneficiary died at the same time and when proof whether the beneficiary survived the testator is impossible, the legatee may not have a right to succeed the testator. This is because when the succession of the testator is opened, 193

the law assumes that the testator is the last survival while the beneficiary died before the testator (Art.832 of the Civil Code.) The other question that invites a wide and deep discussion is the absoluteness of the principle of survivorship of the testator by the beneficiary.  Is it always true that a legatee who survives the testator would be entitled the benefit from the estate of the testator, or is there any restriction imposed by the law which denies the right of the beneficiary to take part in the succession of the testator, though the legatee survives the testator, because of identity, nationality or conduct?  What are those acts that made the beneficiary of will unworthy of succeeding the deceased? 5.2

Who can be a Beneficiary to Will

The law thoroughly discussed whether certain group of persons can be beneficiary of a will. Persons like,  legal heirs of the testator,  illegitimate child,  a person with different Nationality are among those persons that Islamic law and Ethiopian law discuss with stress whether they can be beneficiary of will or not.

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5.2.1.

Legal Heirs (Heirs at Law)

Legal heirs are those heirs of the deceased who are called to his succession by the law. The law specifies a group of persons who can take part in the succession of the deceased. The question here is, therefore,  Whether legal heirs can be beneficiaries of the will, or 

Is a legacy made in favor of legal heirs valid in the eyes of the law?

Under Ethiopian law, there is no provision that bars the testator from making a legacy in favor of his legal heirs. This is because Art. 912 (1) of the Civil Code declares ”…A testator may call one or more persons to receive the full or bare ownership of his property.” The word "person” under this provision refers, both to natural and legal person. Eventually natural person includes person who is not the heir of the testator and that person who is the heir of the testator. Thus, one can conclude that a testator may make legacy to one or more of his heirs under Ethiopian law, since the law does not make a distinction between those group of persons who would be called as beneficiary of a will and those who can not. In addition to this, Article 913 of the Civil Code is of much help in answering the issue. This provision states “ An assignment of a portion

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of succession or of property forming a part of such succession made by the testator to one of his heirs shall not be deemed to be a legacy but a mere rule for partition, unless the contrary intention of the testator emerges from the disposition”. This provision includes two broad and quiet different legal concepts;  The first one is a direction made by the testator as to the partition of his property among his legal heirs.  The other is a legacy made in favor of his heirs According to this writer’s understanding, the assignment of a property forming part of the succession is a mere direction of the testator as to the division of his property only when the intention of the testator is not clear whether he is making a legacy in favor of his heir or giving direction as to the partition of his property. In all other cases, that is when the intention of the testator is clearly expressed that he is making a legacy in favor of his heir; then it may not be considered as a mere rule of partition. Therefore, it is possible to make a legacy in favor of legal heir by expressly declaring his intention under Ethiopian law. From this follows, legacy in favor of the legal heir is valid as if

it is made to non heirs under Ethiopian law. However,

whether the testator can make a legacy by universal title to his legal heirs and the effect of such a legacy is open to discussion. Legacy in favor of legal heir may be justified by one or more reasons in the view of this writer. Heirs are different in their income and wealth, in

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attaining the age majority and minority, in their educational level and health status. Thus the testator can easily distinguish between his heirs those who are in need of the property and leaves a legacy in favor of those who are in need. Therefore, it is not reasonable and at the same time justifiable to invalidate such legacy simply because the beneficiaries are the legal heirs of the testator. Jurists that object the making of legacy in favor of legal heirs

try to

argued that it will be a cause of conflict and “enmity” may arise among heirs because of preferential treatment

to one of the heirs by the

deceased. This may not be valuable because the testator has the power to dispose his property to a stranger or a person who is not the heir of the testator. Thus, is it not better for the heirs, when the testator disposes the property in favor of their relatives than to a person who has a remote affinity or blood relationship with them or for a stranger?

5.2.2.

Illegitimate Child

One may ask the validity of legacy made in favor of his illegitimate child by the testator. Different jurisdictions answer the issue differently. In common law legal systems, for instance, when the illegitimate child to whom the legacy is made is alive at the time when the will is executed, he is entitled to the right emanating from the will provided that he is described as beneficiary there of.

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Ethiopian law also makes no distinction between legitimate and illegitimate children for the purpose of succession in general or testate succession in particular. Pursuant to Art.836 of the Civil Code and Art.35 ( ) of the constitution illegitimacy of a child may not affect in any manner his right to take part in the succession whether it is testate or intestate. An illegitimate child under Ethiopian law is one of the heirs of the deceased. Since heirs can be beneficiary of a will, a legacy made in favor of illegitimate child is valid under Ethiopian law. It is true that Islamic law denies the legal tie between the father and his illegitimate child for the purpose of intestate succession. In effect, it precludes the illegitimate child from participating in the succession of his father and vice-versa17. This is on the ground that the root cause for inheritance does not exist in the eyes of the law because a person and his offspring are not “ father” and “child” for the purpose of intestate succession18. 5.2.3. Religion and Nationality of Beneficiary The other issue that invites some question revolves around whether a person with different religion from that of the testator can be a beneficiary of a will or not, secondly can a foreigner be a beneficiary of a will? According to the provision of Ethiopian civil code Article 837, Sex, Age and Nationality of heirs have no effect in the ascertainment of their

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right when they are called to the succession by the law or by testament. However, this provision does not mention religion.  This eventually invites a question whether difference in religion can be a bar to the will. Obviously, Ethiopian law puts in clear and express manner the impediments that can bar succession either testate of in testate. Nonetheless, difference in religion between the deceased and the beneficiary is not included there in.  By the general principle that declares “What is not prohibited is permitted” one may say difference in religion does not bar the beneficiary to take by will. 

In addition to this, it is possible to argue that Article 837 of the civil code of Ethiopia is not exhaustive provision. Rather it is an indicative provision which shows that things which are personal to the heir or beneficiary may not affect the ascertainment of his right in the succession of the deceased. Thus, though Art 837 of the Civil Code does not expressly defined the effect of difference in religion, it does not impair right of the heir or the beneficiary to take part in the succession of the testator as a heir or as the beneficiary of a will respectively.

Difference in religion is, however, one of the impediments of in testate succession under Islamic law. The justification is that, the rules of inheritance stated by the verses of the holy Qura'n are designed to distribute property among the surviving community of Muslim and naturally difference in religion between a Muslim and non Muslim is 199

seen as a difference of communal allegiance constituting a general bar to inheritance.

5.2.4 Unworthy Beneficiary The prevalent issue open for discussion in jurisprudence is whether the legacy made in favor of a murderer of a testator can be valid and effective before the law. The general rule developed in such circumstances is that, one who kills the testator intentionally may not take a legacy under a will unless the testator knew the fact and had reasonable opportunity to revoke a will and did not revoke it. Ethiopian law of succession does not make an exception from this rule. A legacy in favor of a person who is sentenced by the court of law for causing intentionally the death of the testator may not have effect before the law. This is because the beneficiary has no capacity to succeed the deceased as he is unworthy. This concept of unworthiness is not limited only to case mentioned above. The law also declared any person who is called to the succession of the deceased, either by the will or by law, is unworthy of succeeding the deceased;  When the person was sentenced for an attempt to cause the death of the testator.  The person who is sentenced for causing intentionally the death of descendants, ascendants or the spouse of the deceased or

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

if he is sentenced for his attempt to kill any one of such persons is declared unworthy of succeeding the testator.

 The same is true when the beneficiary made a false accusation or give

a

false

testimony

which

might

have

resulted

the

condemnation of any of such person to capital punishment or rigorous imprisonment and if he sentenced for it. In addition to the above stated conditions, a beneficiary may not be entitled to a right from the will if he prevented the testator for making, revoking or modifying his will. The same measure is taken when the beneficiary intentionally destroyed, caused to disappear or alter the last will of the deceased. He should not also avail him self of a false will . Therefore, a beneficiary who made any one of the crimes or acts stated above before the death of the deceased may have no right to the succession of the testator. Nevertheless, a legacy made in favor of a person who have done any one of the above stated crimes or acts may be valid provided that the following two conditions are fulfilled pursuant Art.841 of the Civil Code. Firstly, it is when the deceased expressly stated in his will that he pardoned him in clear and express manner. The fact that he is not revoking his will after the happening of events is not taken tantamount to pardon under Ethiopian law. The testator should state by his will that he pardoned the beneficiary. If the deceased ordered a legacy with full knowledge of the circumstances in favor of the person who committed any one of the acts 201

after the happening of the event that gives rise to the unworthiness to succeed , this is considered as pardon of the deceased. Under Ethiopian law, the unworthiness of the beneficiary of will, is restricted not only to the killing but also extends to an attempt to kill. Moreover, it protects the heirs and spouses of the testator from being killed by the beneficiary. Killing or attempt to kill ascendant, descendants or spouses of the testator becomes a bar to get a benefit from the will. The position taken by Ethiopian law has strong points. This is because at first a criminal should not be the beneficiary of his criminal act. Had he never killed the testator, the testator might have revoked the will made in favor of such a person. Secondly, had it not been for such a restriction stipulated by the law, there would have been a great risk in the society because beneficiaries might have been initiated to involve themselves in the act of committing homicide on the testator to bargain on the revocation of the instrument.

Question 1.

What would be the effect of a legally made by universal title in favor of the heirs of the deceased?

2.

Does an unworthy beneficiary have the capacity to succeed a legatee by singular title?

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5.2 Proof of will One of the important issue that should be dealt by the law of succession is those issues related to the proof of will. The rules that have been enshrined in Arts, 896-897 deal about; -

The burden of proof of will

-

the means and mechanisms of proving will

The burden of proof refers to the obligation of the parties to establish their respective allegation. According to Art 896 - the burden of proving the existence of a valid will is on the person or persons who claim a right under the will. According to Art 897 (1) of the civil code, the beneficiary of will can prove the existence and content of public will and holograph will by only producing two types of evidence. Either, the beneficiary has to produce the original public or holograph will made by the testator, or he has to produce the certified copy of the public or holograph will which is verified by public notary or court registrar. Unless the original or certified copy of the public will or holographic will is not produced by the beneficiary, the law does not admit any other 203

mode of proof in the subject matter under discussion. The person (persons) claiming a right under a will have the burden to prove the content of the will by producing admissible evidence. To this effect Art 897 (2) clearly stated " They may not be proved by any other means for the purpose of obtaining their execution". Thus, a beneficiary of will may not prove the will by any other means to ask for the performance of the will provision. However, he can prove by any other means for obtaining damage from the person who, through his fault or negligence, has caused the will disappear pursuant to Art 897 (3) of the Civil Code. An oral will may be also proved by producing those witnesses who heard the oral declaration of the deceased pursuant to Art 893 of the Civil Code.

Question 1.

What is the difference between the rules enshrined in Art 897 (2) and Art 897 (3) of the Civil Code?

2.

What would be the effect if the beneficiary produced a simple copy not certified by notary or court registrar of a public or holographic will as an evidence to obtain the benefit of the will?

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CHAPTER SIX LIQUIDATION AND ADMINISTRATION OF SUCCESSION

Dear by distance friend This chapter is designed to discuss with you about,  The meaning and essence of liquidation of succession  The essence and purposes of the rules that govern the appointment of the liquidator  The powers, duties and liabilities of the liquidator  Rules that govern the administration of succession  The essence and effect of closure of liquidation of succession under Ethiopian law.

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6.1

The meaning and essence of liquidation of succession. Dear my distance friend;

 What is the meaning of the concept called liquidation of succession?  What is the essence of liquidation of succession?  Why the liquidation of succession is important step in the devolution of the succession of the deceased?  What kind of activities constitutes the liquidation of succession of the deceased? The word "liquidation" in law dictionaries refers to the act of determining the exact amount of something which was uncertain before. The law of succession in any jurisdiction is concerned in determining the exact identity of the persons who can be called to the succession of the deceased and at the same time to asses the exact value of the deceased estate that will be devolved to his heirs and legatees. Because of this, liquidation of succession is an important step in the devolution of the succession of the deceased. Liquidation of succession comprises,

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 The act of determining those persons who are called to take the property of inheritance.  The act of determining those things that make up the deceased estate and those things that does not make up the succession of the deceased  Any action taken to recover debts succession which are due  Any action taken to pay the debts of succession which are due and exigible  The payment of the legacies by singular title and taking such other steps which are required to carry in to effect the provisions of the will made by the deceased. This has been clearly enshrined under Art.944 of the Civil Code of Ethiopia. In most jurisdictions, the Law of Succession is concerned about the uncertainty existed in identifying  The persons who can be called to the succession the deceased, and  The exact value of the deceased estate that will be devolved to his heirs. Before the above mentioned activities are properly worked out in the process of the liquidation of succession of the deceased there are unreliable and uncertain factors. Because of this, the law of succession took such steps that have a vital importance in protecting the creditors of the deceased and right of the heirs of the deceased in one form or another. One of the steps that have been taken by the law of succession is that the law considered those things that make up the inheritance of the deceased as "a distinct estate" until the closer of liquidation of succession. The law gives such a distinct legal personality to the estate of

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the deceased and started to give a legal protection just from the very moment of the opening of succession of the deceased. This in effect means things that make up the succession of the deceased consider as "a distinct estate" from the time when the person dies. This step has been taken by the succession of Ethiopia and the rule has been enshrined under Art. 942 of the Civil Code that states "So long as the succession has not been liquidated; it shall constitute a distinct estate". The second step taken by the law is that those things that make up the succession of the deceased will remain as exclusive security to the creditors of the deceased until the closer of the liquidation of succession. This in effect deters the heirs of the deceased from taking any of the property of the deceased before the closer of liquidation of succession. Thus, the properties make up the estate of the deceased may not be transferred and merged with the property of his heirs until the closer of liquidation of succession. Because of these,  The creditors of the deceased and creditors of succession may not have any right on the personal properties of the heirs of the deceased. This is because the heirs does not talk any property that make up the succession of the deceased before the closer of liquidation.  The personal creditors of the heirs of deceased may not have any right on the properties that make up the estate of the deceased. The exact amount of the value of the property that would be the share of

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the heir is not yet established and determined before the closer of succession. Thus, the personal creditors of the heirs has no any right to claim any part of the estate of the deceased while the liquidation of succession is on the process. These important steps have been adopted by the succession law of Ethiopia and it has been enshrined in Art 943 of the Civil Code. As it is stated above, liquidation of succession is a critical step and process in the devolution of the succession of the deceased. Thus, it is natural that a dispute may arise between the heirs and legatees of the deceased in the course of liquidation. The heirs and the legatees have the right to make an agreement for settling any dispute arising between them regarding and liquidation of succession by presenting it to one or more arbitrators pursuant to Art 945 Sub Art 1 of the civil code. In such a case, the power vested in the courts under the provisions that govern liquidation and administration of succession can be exercised by the arbitrators pursuant to Art 945 Sub Art 1 of the Civil Code. By adopting the rules enshrined under Art 945 of the Civil Code, the law of succession give a wider discretion for the heirs and legatees of the deceased to settle any dispute that arise in the process liquidation and administration of succession out of the court. To conclude, liquidation of succession is the most critical and important step in the devolution of the succession the deceased. It is purpose is to 209

determine the exact persons who can be heir and legatees of the deceased and the exact value of the deceased's estate that will be transferred to his heirs and legatees. More over until the closer of liquidation, the rules of succession in Ethiopia obliged,  The property that makes up the succession of the deceased may be considered as a distinct estate.  This distinct estate shall remain as the exclusive security of the creditors of the inheritance.  The creditor of the deceased may not have the right on personal properties of the heir.  The personal creditors of the deceased heir may not have a right on the property of the deceased estate.

Questions 1.

What is the importance of considering the property of

the Deceased as a "distinct estate" by the law? 2.

Try to evaluate the importance and essence the rules

enshrined under Art 945 of the Civil Code? 3. Why the deceased creditor has no right on the personal 210

properties of the heirs of the deceased before closer of succession?

6.2

The Appointment and Duties of the liquidator of Succession

Dear my distance friend  What is meant by a liquidator of succession  Who are the persons that can be appointed as liquidator of succession by the operation of the law?  Does the deceased have the power to appoint liquidation of succession by his will?  In what conditions can the court appoint a liquidator of succession?  What are the power and duties of liquidators of succession?

6.2.1 The Appointment of the liquidator The liquidator of succession is a person or a group of persons who are in charge of performing the liquidation of succession the deceased. Liquidation of succession is a critical step in devolving the succession of the deceased. Thus, a person or persons who are in charge of performing process of liquidation of succession have a difficult responsibility of identifying the exact heir and legatee of the deceased and determining the exact amount of the deceased's estate. Hence, the

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appointment of a liquidator is also a crucial issue in the devolution of the succession of the deceased. According to Art 946 of the Civil Code, the succession of the deceased, whether intestate or testate, shall be liquidated by one or more persons called the liquidators of succession. The liquidators of succession under Ethiopian Law may be designated or appointed,  By the will of the deceased  By the operation of the rules of succession, or  By the declaration of the court pursuant to Arts. 947-951 of the Civil Code.

6.2.1.1 Liquidator Designated by the Will of the Deceased The deceased has the power to designate the liquidator of succession under Ethiopian Law. Where the deceased left a will that expressly nominate the person who can be the liquidator of his succession, the person or the persons who are expressly designated as a liquidator has the power to liquidate the deceased succession as testamentary executor pursuant to Art 948 (1) of the Civil Code. According to Art 948(1) of the Civil Code, the person or persons who has the primary responsibility to liquidate the succession of the deceased is vested on those persons who are expressly designated by the deceased as the liquidator of his succession by his will.

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In the absence of such will of the deceased that designate the liquidators of his succession, and where the deceased made a legatee by universal title, a person or persons who are appointed as a legatee by universal title have the responsibility to liquidate the succession of the deceased based on Art 948 (2) of the Civil Code. According to Art 948 (2) of the Civil Code, persons who are appointed as a legatee by universal title will take the responsibility of liquidating the succession of the deceased when the deceased did not designate any person as a liquidator of his succession. And the legatees by universal title will be the exclusive liquidator of the succession of the deceased only when the heirs at law are excluded from receiving any share from the succession of the deceased by his will pursuant to Art 948 (3) of the Civil Code. To this effect Art 948 (3) declares "The heirs at law shall act jointly with the legatee by the universal title as liquidators, unless they are under the will to receive no share in succession." The deceased has the power to exclude one or more of his heirs under Ethiopian law, i.e. he as the power to exclude by his will  His descendant's heirs by making an express dishersion pursuant to Art 937 and Art 938 of the civil code.  The deceased also has a wider power to exclude his Ascendant heirs and their representative by his express declaration or by appointing a legatee by universal title pursuant to Art 939 of the Civil Code. 213

Thus, where the deceased did not designate any person as a liquidator of his succession by will and appointed a legatee by universal title, the person who is a legatee by a universal title will be the exclusive liquidator, When the deceased have descendant heirs and he expressly disinherited them pursuant to Art 937 and Art 938 of the Civil Code.  When the deceased have ascendant heirs or their representative and appoint the legatee by universal title with out providing his intention that is contrary to Art 939 (1) of the Civil Code. In other situation, i.e., where the deceased did not expressly disinherited his decedent heirs pursuant to Art 937 and 938 (2) of the Civil Code, and where he appointed a legatee by universal title by expressing that his appointment would not result the tacit dishersion of his ascendant heirs and their representative, a legatee by universal title may not the exclusive liquidator of the succession of the deceased. Rather in such a situation, the legatee by universal title will act jointly with the heirs at law of the deceased as liquidators of the succession of the deceased pursuant to Art 948 (3) of the Civil Code. There fore, the primarily responsibility of the liquidation of succession is vested on the person or those persons who are designated as a liquidator of his succession by the will of the deceased.  Person or persons appointed by the deceased as his legatee by universal title may have the power to liquidate the succession where the deceased did not designate any person as a liquidator. Moreover, 214

legatees by universal title may be the exclusive liquidator of the succession of the deceased only when the deceased disinherit his heir at law in accordance with the relevant provisions of the law of succession.

This in effect means, a legatee by universal title will not be the sole liquidator when ever the deceased did not disinherit his heirs at law by his will. In such a case legatee by universal title will be a joint liquidator of the succession of the deceased with the heirs at law.

6.2.1.2

Liquidators designated by law

The heirs of the deceased may have the power to liquidate the succession of the deceased in a situation;  When the deceased did not designate any person as a liquidator by his will pursuant Art 948 (1) of the civil code, and  When the deceased did not appointed a legatee by Universal title by his will. The heirs at law of the deceased can be the sole liquidator of the succession if the above two cumulative requirements are fulfilled pursuant to Art 947 of and Art 948 of the civil code. However, the heirs of the deceased will act jointly with the legatee by the universal title as liquidators if they are not disinherited by the deceased in accordance with the law. From this, we can conclude that;

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 Heirs at law of the deceased may be the sole or exclusive liquidators of the succession of the deceased only when the deceased did not appoint a liquidator and did not appoint a legatee by universal title by his will.  Heirs at law of the deceased may be joint liquidators of the succession of the deceased with legatee appointed by universal title when the deceased did not disinherited his heirs by his will.

6.2.1.3. Liquidators appointed by the court The court may appoint a liquidator to the succession of the deceased by the application of any interested person in the following situation. The first one is,  Where the deceased did not designate any person as liquidator by his will, and  Where the deceased did not appoint a legatee by universal title by his will, and  Where the heirs are unknown, or all of his heirs renounce the succession of the deceased or all of his heirs do not want to liquidate the succession,  Where the testator has no left heirs and the succession is taken by the state. The second case is that,  Where the deceased designate the liquidator by his will but doubles has been arise as to the designation of a liquidator. This is because the validity of the will left by the deceased that designated 216

the liquidator is contested or became unenforceable due to other reason for example due to the death of the person designated as liquidator.  Where the deceased appointed a legatee by universal title by his will but doubts has been arise as to the validity of the will let by the deceased that appoint a legatee by universal title or the will of the deceased has no legal effect for any other reason. For example if the will is a holograph will and it has lapsed pursuant to Art 903 of the Civil Code.  Where there are several liquidators and they are not in agreement on the administration and liquidation of succession.  Where there is a minor or interdicted person among the heirs of the deceased who is not in a position to look after his interest.  Where the liquidator appointed by the deceased or designated by the law or appointed by the court remains in active or is dishonest or is found to be incapable to perform his function properly accordance with Art 950 and Art 951 of the Civil Code. To conclude, the deceased has the ultimate power to determine the person or persons who can liquidate his succession by leaving a valid will. The deceased also have the power to designate the liquidator of his succession by appointing a legatee by universal title. In the absence of persons who are designated as the liquidator of succession by the deceased's will, his heirs at law have the power to liquidate his succession by the operation of the law.

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In the absence of a person designated as liquidator by the deceased and heirs of the deceased who want to liquidate the succession or in a situations that has been stated under Art 951 of the civil code, the court has the power to appoint the liquidator for the succession of the deceased.

6.3 The Rights and Duties of the liquidator Liquidator of succession may be designated either by the will of the deceased, by the operations of the rules of succession specifically by the operations of Art 947 and Art 948 of the Civil Code or by the declaration of the court in accordance with the rules stated under Art 951 of the Civil Code. Not with standing haw and by whom a person is designated as a liquidator, a person or persons who are assigned or appointed as a liquidator have rights and corresponding duties while he is performing the liquidation at the succession of the deceased. To begin with the rights and privileges of a liquidator which are recognized by the succession law of Ethiopia,  The liquidators have the right to get remuneration when it is justified by their work they have performed pursuant to Art 959 of the Civil Code.

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 The liquidator will be entitled to remuneration which is subjected to conditions that has been determined by the deceased in his will or, The remuneration will be paid to the liquidator based on the agreement made by the heirs of the deceased, or it may be paid based on the conditions determined and decided by the court. It is important to note that a person who is appointed as a liquidator of the succession of the deceased may not get a remuneration, if the work he has performed did not justify his payment. Even a person who is designated as liquidator of succession by the will of the deceased may not be entitled to the remuneration if he is inactive and dishonest. In such a case, he will be replaced by another person by the decision of the court pursuant to Art 952 (1) of the Civil Code. Thus, the right of the liquidator to get remuneration depends on how he has acted diligently to discharge his duty. The second privilege which has been recognized by the succession law of Ethiopia is that the liquidator has the right to resign from his function at any time he wanted pursuant to Art 954 (1) of the Civil Code. More over, any person has the privilege to be a liquidator only and only on the basis of his own free choice. No person is bound to accept the function of the liquidator pursuant to Art 953 of the Civil Code. Most of the rules that have been enshrined from Art 952 – Art 961 of the Civil Code, enumerated more of the duties of the liquidator than that of his right and privileges. There fore, the liquidator under Ethiopian law of succession has the duty; 219

 To give a security or some other guarantees for the proper the proper performance of his function.  Where there are several liquidators they are duty bound to act jointly.  To render the accounts of his management when he accomplished his function.  To act inconformity with the provisions of the law, to the provision of the will of the deceased and to the directions given to him by the court.  The liquidator may be liable for any damage he causes through his fault or negligence. More over, the liquidator has the power and duty  To make a search to find out whether the deceased has left will.  To establish the identity of persons who are entitled and ready to take the property from the deceased estate.  To administer the succession of the deceased  To pay the debts of the succession which are eligible

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 To pay the legacies ordered by the deceased.  To take all other measures necessary to execute the will. The succession law of Ethiopia stated all these duties of the liquidator under Art 952, and Arts 956 – 965 of the Civil Code.

6.4

Liquidation of succession under Ethiopian law.

Dear my distance friend;  What kind of activities should be performed

in the process of

liquidation of succession under Ethiopian law ? 

Enumerate those activities that should be performed by the liquidator?

 What should be done to determine persons who are entitled to the succession of the decease?  What is administration of the succession ?  What is meant by payment of the debts of the succession?  Try to evaluate the validity of the following statement. " Legacies by singular title are considered as the debts of succession under Ethiopian law. Thus the payment of legacies made by the will of deceased is a the kind of function that has to be performed before the closer of liquidation under Ethiopian law.. Though, legacies by singular title are a gratuitous donation made by the deceased to the beneficiary, the law considered it as one of the debts of the succession for all practical purpose."

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6.4.1The Determination of Persons Entitled to the Succession. The exact identity of a person or persons who can be called to the succession of the deceased may not be established utile the liquidation of succession. One of the important function of the liquidator is there fore, to perform activities which are vital to determine the identity of those persons who are entitled to take part in the succession of the deceased. The activities that can be performed by the liquidator to determined the identity of those persons who can be called and take part in the succession of the deceased can be divided in to two.  Those activities which are essential to determine the identity of persons entitled to succeed the deceased provisionally.  Those activities which are useful to make the final determination of the persons entitled to the succession of the deceased.

6.4.1.1 Provisional determination of persons entitled to succeed. Though, one of the most important, and challenging function of the liquidator under Ethiopian law is to make a final determination of the identity of those persons who fulfilled the legal requirement to succeed the deceased, this can be attained only by establishing the identity of persons who can be called to the deceased succession at a provisional level in the first place.

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The activities that should be performed by the liquidator to determine the provisional successions of the deceased include;  Those activities which are essential to establish temporary the identity of the beneficiaries of a will made by the deceased.  Activities made to determine the identity of the heirs at law of the deceased provisionally.  The succession of the deceased may be either totally testate or partially interstate under Ethiopian law. Because of these, the temporarily establishment of the identity of persons that can be called to the succession of the deceased by his will is one of the important measure taken during liquidation of succession. To make a provisional determination of the legatees of the deceased, the liquidator of the succession should properly perform the following activities. That is: The liquidator has to make a search for the will of the deceased  The liquidator has to deposit the will of the deceased  The liquidator has to open the will of the deceased.  The liquidator has to establish an order of partition One of the primary duties of the liquidator of succession under Ethiopian law is the duty to make a due search to get the will of the deceased. According to Art 962 (1) of the civil code, the liquidator in the first place make a search to find out whether the deceased has left a will. 223

This provision imposes a legal duty on the liquidator of the succession to put his maximum effort in searching whether the deceased has left an oral, holograph or public will. To achieve his objective of searching the will of the deceased, Art 963 (2) Civil Code gives some guild line about how the liquidator can search whether deceased left a will. Pursuant to Art 963 (2) of the civil code the liquidator of the succession;  Have to examine the papers and other relevant documents of the deceased  Should make search and inquiry with the notaries and in the registries of the courts of the place where the deceased has resided. How ever, it is important to note that Art 962 (2) of the Civil Code is not an exhaustive provision. Rather the provision is enumerative and indicative by its very nature. There fore, the liquidator may ask the near relatives and close friends of the deceased to find out whether the deceased has left an oral or a written will. Thus, the purpose of Art 962 (2) of the Civil Code is to give guidance to the liquidator as to how he can search whether the will is left by the deceased. The law does not exhaustively listed out the methods how and the place where can the liquidator search the will of the deceased. To assist the efforts made by the liquidator the law imposes the duty to declare about the existence of the will of the deceased on those persons 224

 who are in possession of the will ,or 

persons who where witnesses to the will, or



Persons who where not witness but have the knowledge about the existence of the will.

According to Art 963 (1) of the civil code,  Any person who has the will of the deceased under his possession or  Finds or knows in his capacity as a witness or other wise a will made by the deceased has the duty to make a declaration about the existence of such a will to the liquidator of succession as soon as he came to know the death of the testator. Thus, searching for the will of the deceased is an important step in the provisional determinations of persons who are entitled to succeed the deceased. Secondly, the liquidator who finds out a holograph or public will left by the deceased by his search has the duty to deposit the will either to the notary or to the registrar of the court with out delay. The liquidator has to deposit a holograph or a public will that was found by his search or by the declaration of persons, who have the duty by the law. The duty to deposit the will of the deceased in the office of notary or court registrar has been emphasized under 964 (1) of the Civil Code, because the production of the original Will made by the testator or the copy certified with the original by the notary or court registrar is the

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only admissible evidence to prove a public or holograph Will pursuant to Art 897(1) and Art 897(2) of the Civil Code. Thus, since the very existence of the original will is detrimental for the beneficiaries of will, the law obliged the liquidators to deposit and preserve this vital evidence in the places where it can accord the maximum public protection. The Will should be deposited in the notary office or court registrar where it is discovered or conserved. More over, any interested person has the right to ask the deposit of the Will in situation where the liquidators did not deposited the holograph or public will of the deceased pursuant to Art 964(1) of the Civil Code. When the liquidator find out that the deceased has left an oral will, the statements and depositions made by the deceased should be reduced in writing. That means the testament made by the deceased orally will be reduced in to writing first and this written instrument should be deposited by persons who have been a witness while the deceased made the oral will pursuant to Art 964(2) of the Civil Code. After the search for the will of the deceased properly conducted and a will that has been find out has been deposited in accordance with the rules enshrined under Art 964 of the Civil Code. The third important function of the liquidator is to make the opening of the will of the deceased.

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Opening of a will refers to the act of publicity of the will of the deceased by a person who is in charge of liquidating the succession of the deceased. Mostly, the concept called opening of will includes,  To an act of verifying the validity and the form of the Will of the deceased. By the liquidator and all persons present in the opening of the will  It also include learning or knowing the content of the will made by the deceased since both the holograph, the public will and on oral will which has been drawn up in writing and deposited pursuant to Art 964 (2) of the Civil Code will be read out in the presence of his descendants heirs or at least in the presence of four persons who attained at the age of majority and who are not interdicted by law pursuant to Art 968 of the Civil Code. The opening of will of the deceased will be made with in the time that has been prescribed under Arts 955-956 of the Civil Code and in a place where which is stated in Art 967 of the Civil Code. After the opening of the will of the deceased the liquidator has the duty to determine who are the legates and heirs of the deceased and to what portion of the succession each of them entitled pursuant to Art 971(1) of the Civil Code. The liquidator is duty bound to inform the legatees and heirs of the deceased with act delay, about the manner in which he considers the succession should devolve pursuant to Art 971(2) and Art 971 (3) of the 227

Civil Code. The establishment of an order partition as it is stated under art 971 of the civil code is the fourth important step that should be performed by the liquidator of succession under Ethiopian law. The liquidator may also made a provisional determination of the heirsat-law of the deceased .The search made by the liquidator will end up with out finding any will left by the deceased. If the liquidator did not get a will which was left by the deceased , the liquidator has the duty to inform the heirs-at-law about the manner how the succession of the deceased should devolve pursuant Art 972 (1) of the Civil Code. The law imposes an obligation to give such information for the heirs of the deceased when it appears certain that there is no will left by the deceased and with in the time specified under Art 972 (2) of the Civil Code. 6.4.1.2 Final Determination of Persons The above function of the liquidator only help to make a provisional determination about the identity of persons who can be called to the succession of the deceased by his will or the heirs of the deceased that can be called to his succession by the operation of the law of succession A final determination of persons who are entitled to succeed the deceased may not be limited to the act which have been performed by the liquidator alone because;

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 The decision made by the liquidator in the opening of the will of the deceased may be challenged by any interested party and it will be subjected for an order of the nullity of the will by the court pursuant to Art 973 and Art 974 of the Civil Code.  The decision made by the liquidator pursuant to Art 972 of the Civil Code may be challenged by any interested party in the court of law and it will be subjected to judicial revision.  Those persons who are identified as legatee or heirs of the deceased my not accept the succession. Thus a final determination of persons who are entitled to the succession of the deceased may not be made before the legatees and the heirs whose identity was temporally determined by the liquidator expressed their intention either to accept or renounce the succession of the deceased pursuant to Arts 976 – 995 of the Civil Code.  More over, heir or legatee may directly applied to the court get a certificate of heir and the court may issue certificate of heir pursuant to Arts 996 – 998 of the Civil Code. There fore, a final determination of the identity of persons who are entitled to succeed the deceased may be made by identifying  Those persons who are found to be the legatees of the deceased by his Will which is found out by search of the liquidator and which is not annulled or revised by the court. And only those who accepted to take part in the succession.

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 Those persons who are identified as the heirs-at-law of the deceased by the liquidator, whose right is not cancelled by an order of the court and who accepted to take part in the succession.  Those persons who directly apply to the court to get a certificate of heir and has got such certificate that has not been taken away by the order of the court. The provisions that govern the appointment of liquidator and those functions to make a final determination of the persons entitled to the succession have an important purpose to serve. The rules listed out by whom and how the liquidation of succession can be made easily, and mostly with out referring the case to the court. How ever, the rules have less practical importance as opposed to the intention of the legislature. This is because  In most cases the heirs of the deceased raise an objection on the validity of the will that designate some one as liquidator and mostly the heirs disagree to liquidate the secession jointly. These, in most cases, liquidators of secession has been made by the Court to the extent that it make Arts 947 and 948 of the Civil Code ineffective.  Since the heirs of the deceased usually object and institute an action to nullify the will made by the deceased the rules that govern about the search, deposit and opening of will of the deceased has no a practical importance in the liquidation of succession of the deceased in Ethiopia. Thus the possibility of settling issues as to who can be called to the succession of the

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deceased out of the court has been highly affected by actions of the heirs of the deceased.  Because of this the provisions that govern the function of the liquidator in the determination of persons who are entitled to succeed the deceased has been ineffective and has little enforceability in the actual life of the society.  The society has the tendency to use the provisions that deal with certificate of heir issued by the court to the maximum level. Because of this those provisions who has been adopted to determine the identity of the persons entitled to succeed the deceased out of the court room through liquidators of succession are not practically utilized by the society at large.

Question 1. What is the role of the court in determining the identity of the person who can be called to succession?

6.4.2 Administration of succession. The liquidator is duty bound to administer the estate of the deceased from the day of his appointment until the closer of liquidation pursuant to Art 1003 of the Civil Code. The term "administration" in the law of secession refers to "the management and settlement of the estate of the deceased by a person who is designated as an executor either by will, or by the operation of the law or by the decision of the court.

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Administration of succession encompasses those acts of management made by the liquidator and such other activities that are recognized by the law of succession. Acts of management under Ethiopian law includes those acts done for the preservation or maintenance of the property, collections of debts, the discharge of debts, and the sale of crops, goods or perishable commodities pursuant Art 2204 of the Civil Code. Similarly the liquidator should administer the property of the succession with the prudence and head of bonus patter families pursuant to Art 1010 (1) of the civil code. In the course of administration of succession the liquidator may get such directions from the heirs or from the court pursuant to Art 1010 (2) of the Civil Code. The acts of management that should be performed by the liquidator with the prudence and zeal of a bonus patter families are enumerated from Arts 1011-1013 of the Civil Code. The acts generally include,  Acts of preservation,  Acts made to settle things due to the succession and  Sale of property pertaining to the estate of the deceased. The liquidator shall perform all acts which are necessary for the preservation and maintenance of the property which is a part of the deceased estate. More over, the liquidator is obliged to institute all actions for the courts which are necessary for the preservation of the property of the succession. The liquidator also has to contest actions

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instituted by third parties who claim to have rights on the property of succession pursuant to Art 1011 of the civil code. Secondly, the liquidator should perform those acts which are necessary to settle things due to the succession. Specifically the liquidator,may demand payment of what is due to the succession if the debts are exigible and he is authorized to give a quittance of such debts. Thirdly, the liquidator has the power to sell properties which are part of the succession in accordance Art 1013 of Civil Code.  The fruits and crops of succession  All movable pertaining to the succession which ate rapidly perishable  A movable property that require a considerable expense or particular care for their custody and preservation. The liquidator has no power to sell other movables unless such sale is necessary to

pay the debts of succession. Besides the liquidator has no

power to sell, the immovable property except with the consent of all heirs or authorized by the court pursuant to Art 1013 (2) and (3) of the Civil Code. The liquidator has almighty which is closely related to the liquidation of secession of the deceased. These includes,  The making of inventory of the property of succession, and  The valuation of the property pursuant to Art 1005-1006 of the Civil Code. The liquidator under Ethiopian law has the duty to establish the identity of those things that make up the estate of the deceased by drawing up an

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inventory within forty days from the death of the deceased. Thus, making an inventory to establish things that make up succession in accordance with Art 826 (2) of the Civil Code is one of his duties. The liquidator has additional duties in accordance with the provisions of Art 1005 of the Civil Code.

The liquidator not only has to make an inventory to establish things that make up the deceased estate, but also he is duty bound to make the valuation of the property of the succession. The valuation of the property which is the part of deceased's estate constitutes both the assets and liabilities of the succession. The liquidator can make the valuation with the assistance of experts. Thus, the liquidator has to make a provisional valuation by him self or with the help of an expert pursuant to Art 1006 of the Civil Code. To make the valuation made by the liquidator successful, the law under Art 1007 of the Civil Code, imposed a duty on the heirs of the deceased to give all relevant information about the rights and obligations which they had in favor or against the deceased that can not be terminated by his death. The law also imposes an obligation on the liquidator of succession some additional duties under Art 1008 of the Civil Code. These are,  To give the copy the inventory for any person who is called to the succession of the deceased,

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 To the court which is involved in the devolution of the succession of the deceased, and  To the creditors of the deceased or succession. The rule of succession imposes the duty to give the copy of the valuation made by the liquidator to the legatees, heirs and creditors of the deceased because, the legatees, heirs or creditors of the deceased can ask for the revision of the valuation at any time before the final partition of succession. The legatees, heats or creditors may not exercise this right unless they have full information

about the

valuation made by the liquidator. When a revision of the valuation made by the liquidator is asked, the valuation should be made by experts. The expense of the valuation of the property by experts will be covered from the estate of the deceased only where the provisional valuation made by the liquidator found in correct. In other cases, that is when the valuation of the liquidator is found correct; the expense will be covered by the person who asked for the revision of the valuation pursuant to Art 1009 of the Civil Code. Administration of succession is one of an important function that has to be properly performed by the liquidator. Works that should be performed in the process of administration of the estate of the deceased includes those acts which are parts of the Acts management and those acts which are not acts of management by there nature. Activities, like making an inventory for the property that make up 235

succession and the valuation of the property there of. The rules of succession expressly order the liquidator to act prudently and zeal of a bonus patter families while he administer the succession of the deceased. Only the liquidators that properly perform this function in accordance with the law have the right to get remuneration pursuant to Art 959 of the Civil Code. On the contrary, if the liquidator failed to administer the succession as it is stated by the rules of succession, and caused any damage due to his fault or negligence, he will be liable to the damage and compensate pursuant to Art 961 of the Civil Code. The fact that law of succession considered the property of the deceased as a "distinct estate" necessitated the appointment of a person who is responsible in administering such especial kind of property. Thus, one of the important functions of the liquidator under Ethiopian law is to administer the succession until the closer of liquidation of succession.

6.4.3. The payment of debts of the succession One of the important functions of the liquidator during the liquidation of the succession of the deceased is the payment of the debts of the succession.

6.4.3.1. The order of payment

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According to Art 1014 of the Civil Code the debts of the succession shall be paid in the following order.  In the first place, the expenses of the funeral of the deceased  In the second place, the expenses of the administration and of liquidation of succession  In the fourth place the debts regarding maintenance  In the fifth place, the legacies by singular title ordered by the deceased. This order of payment is mandatory and should be strictly followed by the liquidator. The law set out a priority to pay the debts of succession. In this case, it is important to identify the difference between the debt of deceased and the debt of succession. The debts of the deceased are obligations undertaken by the deceased while he was alive and which are not terminated by his death. The debts of succession are more than that of the debts of the deceased. It includes such expenditures which are necessarily to for;  The funeral of the deceased,  The administration and liquidation of the deceased's estate,  

The debts of the deceased The debts of maintenance that can be payable from the deceased estate and,

 The legacy by singular title.

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Because of this, the rules of succession put down a mandatory order of payment under Art 1014 of the civil code. By this provision, the legislator makes clear that the debts of the deceased can be paid after the payment the funeral and administration of succession expenses. That is the creditors may not be paid if the total estate of the deceased is too small and only covers the funeral and administration expenses.

6.4. 3.2 Funeral and Administration expense.

The first debt of the secession that should be paid in the first place is the funeral expenses of the deceased in accordance with Art 1015 of Civil Code. How ever, the funeral expenses may not have the priority over other debts of the succession unless they can be justified, having regard the social position of the deceased. The Question how can one justify the funeral expenses based on the social position of the deceased is not clear? How ever, the law excludes the expenses for the commemoration of the deceased. The commemoration of the deceased did not constitute a juridical obligation of the spouses or relatives of the deceased under Ethiopian law. Because of this, the expenses of the funeral of the deceased that should be paid in the first order did not include the expenses for the commemoration of the deceased pursuant to Art 1015 (2) of the Civil 238

Code. Thus, it is not all kinds of expenses , the spouses or relatives of the deceased has made based on the tradition and custom, which is considered as funeral expense by the rules of succession. Only those expenses which are necessarily to perform the funeral of the deceased is considered as a funeral expense that should be paid in the first place The debts of succession that should be paid in the second place is the expense of administration and of liquidation of succession in accordance with Art 1016 of the Civil Code. According to this provision expense of the administration and liquidation of succession comprises those expenses which are necessarily to perform the acts of management, and such other mandatory expenses to make an inventory, valuation and partition of succession. More specifically, expenses of the administration and liquidation of succession includes,  The expenses of affixing of seals, and of inventory and those of the account of liquidation.  The useful expenses incurred by the liquidator for the ordinary preservation, maintenance and administration of the property of the inheritance.  The expenses of the partition and those of the transmission of the property of the inheritance to heirs and  The estate duty. However, it is important to know that Art 1016 of the Civil Code is not an exhaustive provision. The rules enshrined in Art 1016 of the Civil 239

Code are an indicative one. Because, the rules do not exhaustivly listed out all expenses of the administration and liquidation of succession that the liquidator is duty bound to perform. For example, Art 1016 did not mention of;  The expenses incurred by the liquidator to search for the will of the deceased pursuant to Art 962 of the Civil Code  The expenses incurred by the liquidator to deposit the will with a notary office or court registrar pursuant to Art 964 of the Civil Code  The expenses incurred by the liquidator to the publicity and opening of succession pursuant to Art 967 and 964 of the Civil Code.  The expenses incurred by the liquidator to institute legal action which is necessarily to preserve the property of the succession pursuant to Art 1011 (1) of the Civil Code.  The expenses incurred to legally defend any claim instituted by third party against the rights on the property of succession pursuant to Art 1011(2) of the Civil Code. The provision did not mention all the above and such other expenses which are necessarily for the liquidation of succession Thus, it is possible to conclude expenses for the administration and liquidation of succession that should be paid in the second place includes those expenses which are clearly mentioned under Art 1016 of the Civil Code and such other expenses the liquidator has incurred to discharge his obligation imposed by the rules of succession.

6.4.3.3

Debts of the Deceased

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The debt of the deceased refers to the obligations of the deceased which are not terminated by the death of the deceased. The deceased may enter in different obligation while he was alive. It is only those obligation which can not terminate by his death are the debts of the deceased that should be paid in the third place. The rules of succession imposed different duties on the liquidator with regarding the debts of the deceased. The first duty of the liquidator is to make a search for the creditors of the deceased. According to Art 1017 of the Civil Code the liquidator is duty bound to take all necessary step to establish whether they are any persons who are creditors of succession. To this effect, the liquidator,  Shall examine the registers and papers of the deceased  Make necessary search in the public registers in the place where the deceased resided or in a place where he has immovable property  Make such publicity in other places where it seems useful to inform the creditors. The rules enshrined under Art 1017 and Art 1018 of the Civil Code imposes such duty of the liquidator to search for the creditors of the deceased. Secondly, if the liquidator find out that there are debts of the deceased which can never be terminated by his death, he has to identified whether the debts of the deceased are exigible debts and are not exigible debts.

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The identification is very important because the activities that should be performed by the liquidator when the debts are exigible is different from that of when the debts are not exigible. When the debts that are found out are exigible debts, the liquidator should pay such debts of the succession. It is a basic principle enshrined under Art 1019 (1) of the Civil Code that exigible debts of the deceased has to paid immediately unless there are the following two exceptional situations.  First, the liquidator may not paid the exigible debts of the succession when opposition has been made to such payment. The provision does not make clear how and by whom the opposition on the payment of exigible debts of the deceased can be made. How ever, logically only interested persons will have the right to make such opposition. The second exception is that when it appears obvious that the assets of the succession are not sufficient to satisfy all exigible debts of the deceased. When the asset of succession is less than the exigible debts of the deceased, the liquidator is not obliged to make a payment. Rather, the liquidator should act in accordance with the rules laid down in the Code of Civil Procedure which are applicable to the insolvency of a debtor pursuant to Art 1019 of the Civil Code. Executive titles which are enforceable against the deceased are equally enforceable against the liquidator pursuant to Art 1020 (1) of the Civil Code. But, the liquidator of succession is not obliged to effect payment 242

of exigible debts before he has made the inventory and valuation of succession. This is because it is only after the liquidator identified those things that make up the succession of the deceased and the total value of the deceased's estate, whether the asset of the succession is enough to pay exigible debts of the succession can be established. Thus, according to Art 1020 (2) of the Civil Code, the liquidator has the power to postpone the payment of exigible debts of succession until he made an inventory and valuation of the deceased's estate. How ever, Art 1020 (2) of the Civil Code does not exclude the power of the court to make an order for the payment of exigible debts of succession before an inventory and valuation of succession. The court can order such payment when it is evident that the succession will be in a position to pay such debts pursuant to Art 1020 (3) of the Civil Code. When the debts of the deceased find out in the search for the creditors of the succession are not exigible debts, the creditors may require securities be given to them to ensure the payment of the debts when they fall due pursuant to Art 1021 (1) of the Civil Code In such a case the liquidator has neither the power nor he incurred a duty to pay the debts of the deceased which are not exigible before the debts are due. The liquidator is only obliged to give appropriate securities for the creditors that can ensure the payment of their debts when they fall due. From this, we can deduce that payments may not be made before the time they due ,even if the debtor is surprised by death.

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The rules of succession put down the mode and method of payment of the deceased from Art 1022 - Art 1024 of the Civil Code. According to the rules enshrined in these provisions in order to make a payment of the debts of succession, the liquidator;  Should make use liquid cash which he find in the succession in the first place  When the liquid cash can not satisfied the debts of the succession and when property is to be sold, the liquidator shall offer such property to the heirs before selling it to another person. In such a case, the liquidator has the legal obligation to sell the property to the heir of the deceased, where the heir offer to buy it by the market value or at a higher price pursuant to Art 1023 of the Civil Code.  Where it is possible to pay the debts of succession by selling properties which are not bequeathed by legacy in singular title, the liquidator should not sell the property bequeathed in legacy. That is the liquidator should exhaustively sell all other properties which are not given as legacy by the deceased to pay the debts of succession. It is only when the debts are not satisfied by selling other properties; the liquidator can sell a legacy for the payment of the debt of succession.

6.4.3.3.

Debts Relating to Maintenance

Most jurisdiction put down a limit on the power of the deceased to dispose his property by Will in order to protect the needy heirs of the

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deceased. Ethiopian law does not put such strict limit on the power of testamentary disposition. The deceased has the power to disinherit his descendants by expressly declaring his intention to do it and by giving sufficient justification for it. On the other hand, the deceased has the power to disinherit his ascendants and their representative either expressly or by appointing a legatee by universal title. More over, the deceased has to power to make a legacy by singular title and dispose all the properties he has acquired for persons other than his heirs. Because of the wider discretion the person has to dispose his property by his Will, and due to the fact that Ethiopian law did not recognize the concept of disposable share and in disposable share, the heirs of the deceased who are needy and is not in a position of to earn their living by their work might be excluded from taking part in the succession of the deceased. To manage the damage caused by the exclusion of the needy and incapable heirs of the deceased the succession law of Ethiopia designed a mechanism to protect those heirs. The method and mechanism of protecting the needy and incapable heirs of the deceased are laid down from Arts 1025 - 1036 of the Civil Code of Ethiopia. According to the rules enshrined under these provisions, debts relating to maintenance are considered as debts of the succession that should be paid in the fourth place. The identity of those persons who can claim 245

maintenance from the succession of the deceased has been listed out under Art 1026. According to this provision,  The spouse of the deceased  The descendants of the deceased  The ascendants of the deceased  \The brother of the deceased  The sister of the deceased, have the right to claim maintenance when they fulfilled the following cumulative conditions. First the " people can only claim maintenance from the succession when they are in need and are not in position to earn their living by their work pursuant to Art 1027 and 812 of the Civil Code. In this case the point of reference is not whether the heir has a job or not. The reference is whether the heir has the physical and mental capability to do a work that can support his living. Thus, the heir may not claim a maintenance from the succession unless he is physically or mentally incapable to do work and can earn for his living. Secondly, descendants, ascendants, brothers and sisters may not claim for maintenance unless they are called by the law to succeed the deceased as his heirs or their representative. Art 1028 (1) of the Civil Code is intentionally adopted in the Ethiopian law of succession to give a legal protection for the heirs of the deceased who has been disinherited either expressly or impliedly by the deceased, but who are not in a position to earn their living by their work and who are in need.

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Thirdly, ascendants, descendants, brothers and sisters should not be excluded from the succession of the deceased by the operation of law. A person is declared unworthy to succeed the deceased if he committed any one of the crime listed under Art 838 of the Civil Code or if he has performed any one of the activities listed under Art 840 of the Civil Code. Thus a person who is unworthy to succeed the deceased may not have the right to claim maintenances pursuant to Art 1028 (2) of the Civil Code. While the three requirements stated by the law should be cumulatively fulfilled by the descendants, ascendants brothers and sisters of the deceased to get maintenance from the succession, the spouse of the deceased will qualify to claim maintenance from the succession if she (he) is in need and not in a position to earn their living by their work pursuant to Art 1027 of Civil Code. More over, no other relative of the deceased other than those listed under Art 1026 (1) has the right to claim maintenance even though, he fulfilled the requirements stated under Art 1027 and Art 1028 of the Civil Code. The person who lived with the deceased may claim maintenance only where the succession devolves on the state pursuant to Art 852 of the Civil Code and where he fulfilled the requirement stated under Art 1027 of the Civil Code. Other rules, i.e. the rules set down from Arts 1029 - 1036 of the Civil Code govern how payment of maintenance debt can be effected from the succession need a further reading. 247

6.4.3.4

Payment of Legacy

One of the dispositions made by person by executing a will is to order legacy in singular title. Where the deceased has ordered legacy by singular title the legacy is considered as the debt of succession that should be paid in the fifth place. That means, the liquidator is obliged to pay a legacy made by the deceased if and only if there is sufficient asset after the payment of funeral expenses, expenses of administration and liquidation of succession, the debts of the deceased and debts that related to maintenance of succession. The fact that legacy ordered by the deceased are payable after the settlement of all the above debts of succession obliged the liquidator to follow other forms of payment other than order of the deceased. The rules laid down from Art 1037 - 1051 put down how and when legacies can be paid by the liquidator or by the heir of the deceased who has been designated by his will. According to Art 1037 of the Civil Code, the liquidator shall pay the legacies ordered by the deceased. How ever, the liquidator is not responsible to pay a legacy that has been imposed on one of the heirs by the will of the deceased. In this case, the legacy may not be considered as the debt of the succession rather it will be considered as the obligation imposed on the heir designated by the will of the deceased.

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The legatee who is the beneficiary of a legacy made by the deceased has an option to accept or refuse to take it. Thus legacy by singular title is considered as one of the debits of succession. It is important to examine those rules that govern the means and mode of payment of legacy by singular title.

To conclude the proper fulfillment of all the above functions that should be performed by the liquidator brings to an end of the process of liquidation of succession. Once the liquidator performed the above stated activities, the next step is what is called the closer of liquidation of succession.

Questions 1. What is meant by closer of liquidation of succession? 2. What is the effect of liquidation of succession? 3. What is the period of limitation required to oppose the decision of the liquidator he made in the opening of succession?

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