Law of succession

ü Is branch of law the rights and duties of a dead person, technically

referred to as the deceased, and should pass to his successor.

ü Law of Successions belongs to the civil/private law category in the

family tree of laws.

CHAPTER ONE
Devolution of successions
General consideration of the devolution of succession

1.1 concept of patrimony

Literal meaning of patrimony the estate that the deceased from his
father to his descendant, this does not exclude the estate that the
deceased from the mother to her descendants.

There are a link between person and patrimony

A. person having patrimony are capable of having right or owing

obligation

B. patrimony is linked to the personality of the person irrespective of

the property

C. Patrimony attached to the personality of the person transmission

of patrimony in its totality take place only after the person death.
1.2 Opening of Succession

As it is expressed in Article 826 of the Civil Code, the succession of the

person opens at the place he/she had his/her principal residence at the
time of his/her death. The succession of the deceased shall open just at
the time of his/her death.

Reason principal residence

ü To identify the court that has a local jurisdiction

ü Person may have several residence art 177(1) so to avoid conflict of

residence

The succession of a person is opened by operation of the law not by

declaration made by the court.

So generally time and place determine

· Capacity

· Local jurisdiction

· Transfer right and duty

1.2,1Things making up a Succession

Generally speaking, what transfer from the deceased to his/her heirs and
legatees are those rights and duties of the deceased which arise from
various relations which the deceased had with third parties during his/her
lifetime.

All the inheritable property left by the deceased at the time of his/her
death are called the hereditary estate

The hereditary estates are not limited to corporeal (tangible) things. They
also include incorporeal (intangible) things such as the works of the mind
or literary rights

Exception to article 826(2):- 1. Article 827Life insurance,

Article 691 definition of life insurance, article 701 beneficiary of insurance

policy (commercial code).

2. Article 828 pension and indemnities

ü Art. 829 succession could be either

ü Testate

ü Intestate

Sometimes it may happen that the succession is a combination of both intestate and
testate. Many circumstances could lead to such a situation. For instance, property
which was not included in the will may be discovered later; the will may be partially
invalidated; the testator may appoint a universal legatee who is not a legal heir to take
only some portion of the hereditary estate and with respect to the rest of the estate
he/she may keep silent; etc.

1.3 Capacity to Succeed

A person should alive at the death of the deceased either in fact (factual existence )
factually alive one second after the death of deceased .or by operation of the Law best
example conceived child Art 834,art 1-4 a legal existence by operation of the law.

The law requires someone who alleges to have a right in the succession of the
deceased to fulfill some requirements. The capacity to succeed depends mainly on two
conditions.

· The first one is the heir and/or legatee must survive the deceased person. The
first condition is an objective condition and the heir and/or legatee shall lose his
right to succeed the deceased for reasons outside his volition.

· The second condition legatee must not be unworthy it is a subjective condition

which occurs with a willful act of the heir and/or legatee. (Read Articles 830 &
831 of the Civil Code).

· Commorients

Persons who die at the same time.

When several persons die by the same accident, and there is no evidence as to who
survived, the presumption of law is, they all died at the same time. When persons who
have reciprocal rights to succeed each other die together, we could know by a
post–mortem examination who survived whom. However, this examination is not
always successful.

Art. 832. — Persons dying simultaneously

Where two or more persons are dead and it is not possible to prove which of such
persons survived the other, the succession of each one of such persons shall be
regulated as if he had been the last survivor without, however, receiving anything from
the succession of the other persons.
Death of Heir

If the heir is alive at the time of the death of the deceased (i.e., at the time of opening
of his succession), then such an heir is said to have survived the deceased. If the heir
survives the deceased, he/she fulfills the requirement of survivorship. Therefore, an
heir who dies even after a short period from the death of the deceased will not lose his
capacity to succeed. What will happen to his/her share from the succession of the
deceased? According to Art. 833, all the rights of the heir in the succession of the
deceased shall pass to the heirs of the heir.( apply the rule of representation ).

o Rule of survivorship;-commorients ,person dying simultaneously,

death of heir.

o Unworthiness(Art. 838-840 of cc)

The second condition to succeed the deceased is related with unworthiness. That is,
in order to succeed the deceased, the heir and/or the legatee must not be an unworthy
person. An heir and/or a legatee can become unworthy because of his criminal actions.
The rationale behind this rule is that a person may not profit from his/her own crime.
the heir has committed the offences prescribed under Arts. 838 and 840, he/she would
not lose his/her capacity as unworthy, if the deceased had given such heir an amnesty,
or if he had forgiven him/her. The pardon may be either an expressed or an implied
one. A very common way of pardoning an heir is expressing the pardon in a will.

Unborn child

“A child shall be deemed to be viable where he lives for forty-eight hours after his
birth…” (Article 4(1) of the Civil Code)

When the father of a merely conceived child dies, the law considers that the interest of
the child requires his consideration as a person. Such a child shall not be treated as a
non–existent being. In such a case, his/her interest requires that he/she is a person
subject to rights. Hence, although he/she is an unborn child, the law allows him/her to
participate in the succession. However, his rights in the succession shall be realized
after his/her viability is proved.

Children born in marriage, outside marriage and adopted children

The Ethiopian law of succession makes no distinction based on the status of a child
whether such child is born in marriage, outside a wedlock marriage or he/she is an
adopted child. but we gave to make sure the establishment of paternity of illegitimate
child .

An adopted child, for all intents and purposes, is assimilated to a natural child. The
only exception for this rule is, as prescribed under Art. 182 of the Revised Family Law
of 2000, (or the corresponding provisions in the Regional Revised Family Codes)
adoption cannot be effective against the ascendants and collaterals of the adopter who
opposed the adoption. Therefore, the Ethiopian law does not make any distinction
among children of the deceased based on the fact that they are legitimate or otherwise.

Article 837, there is no any discrimination based on sex, age, nationality of the heir

1.4 INTESTATE SUCCESSIONS

ü In Ethiopia, most of the successions are intestate.

ü When the deceased leaves no will at all or

ü A court for various reasons invalidates the will made by him,

it is said that the succession is intestate. In such a case, the distribution of the estate
will be in accordance with the operation of the law rather than the volition of the
deceased. In the intestate succession, the law follows “the presumed will of the
deceased.” This type of succession is older and more historic than succession by will.
(Read Articles 842 — 848 of the Civil Code).

Devolution according to degree of relative ;- first relationship ,second .Third,fourth.

o Paterna paternis-materna maternis (Art. 849 and 852)

Articles 842 to 848 this rule has an exception. The exceptional rule of paterna paternis
materna maternis is designed to allocate an immovable property that is obtained by the
deceased from one of the lines by way of donation or succession to the heirs of the
line from which the property is obtained.

To apply the rule paterna paternis materna maternis, the following five conditions must
all exist together. If one of them is missing, it cannot be applicable. The five conditions
are:

1. The deceased must die intestate. (The exceptional rule cannot be applied if
there is a will)
2. His/her own descendants must not survive the deceased. (If there are
descendants, Art. 842 shall apply)
3. The property must be an immovable one. (Art. 849 (1) & (2))
4. The property must be acquired by the deceased from either paternal or
maternal lines by way of succession or donation. (Art. 849 (1) & (2))
5. There must be an heir in the line from which the property has originated. (Art.
851
Escheat (Art. 852 of cc)
When there are no heirs of the deceased up to the 4th relationship, the property shall
devolve on the State. This condition is usually said to be Escheat. Escheat is reversion
of property to the state in the absence of legal heirs or claimants. The State takes the
property of the deceased not by way of succession, but because such property has no
one to claim it.

Representation and renunciation

A. Representation (Art. 853 of cc)

B. Renunciation (Art. 854 of cc)

An heir who is a successor may not necessarily be willing to participate

in the succession. In such a case, he could renounce the succession.
Renunciation is a refusal to accept the succession. A person may
renounce the succession for various reasons. If he/she is relatively in a
better economic position, he may renounce the succession to the
benefit of his co-heirs. The heir who has renounced the succession
shall never be seen as the heir of the deceased.

The reason is the one who has no right in the succession shall not transfer
to his/her descendants what he/she does not have. However, as it is
prescribed in Art. 854(2), the person whose succession has been
renounced may be represented.

WILLS
ü A will is the most satisfactory means of arranging for the devolution of a person’

s property after death.

ü The testator makes a disposition of his/her property through a unilateral

declaration of intention which does not require receipt by another party to

become complete.

ü Valid execution of a will need a testamentary capacity at the time of execution

and that the formal legal requirements were observed.

ü The only requirement is that the instructions in the will not contravene legal

prohibitions or public policy.

ü A will is a juridical act that shall have a legal effect after the death of the testator

or the will maker. its nature is ambulatory and revocable during his /her life time
it is the last wish of the testator

The difference between will and donation

· that donation is a contract whereby a person, the donor, gives some of his
property or assumes an obligation with the intention of gratifying another
person, the done(Art. 2427 of cc)

· Will is a unilateral juridical act which is different from contract, in which the
latter needs at least two parties

· Since donation is a contract, it needs the acceptance by the done (Art. 2436 of
cc).

· The most significant difference, however, between donation and will is the time
in which they are effected. Donation shall take place while both the donor and
the donee are alive. will is ambulatory and hence becomes effective after death
 of the will maker.

Condition for the validity of the will

A) Personal nature of a will (Art. 857) should make the will by himself/herself. No
any other person may take part in the making of a will on behalf of the testator
or by way of assisting him/her. he/she cannot promise to make a will to the
benefit of a relative, a friend or any other person. In addition, he/she cannot
promise to make, modify or revoke a will. the testator can revoke the will at any
time. See Art 859(2).

B) Capacity to make a will Testamentary capacity is a special form of legal

capacity. According to the Revised Family Code, testamentary capacity
commences upon the completion of the 16th year. Prior to this, the minor
cannot make a will even with the consent of his/her legal representative. Minor
Article 295 of the revised family code.

· Judicially interdicted persons Arts 861, 368 and 862

1. An interdicted person may not make a will after his interdiction.

2. A will made by the interdicted person before his interdiction is valid.court
has the power to invalidate such will either totally or partially.
3. Although the will made by an interdicted person after his interdiction, is
invalid, the court has the power to maintain such will either totally or partially.
4. When the court maintains a will made by the interdicted person after he/she
is being interdicted, it shall consider the following points:
· A legacy (money , property must not be exceed 500 birr)
· Heir at law (descendant of the interdicted person should get 3/4 of the
succession

ü Insanity

· As indicated in Art. 863, a will made by an insane person is valid unless it

is proved that the person was a notoriously insane person at the time of
making the will.

§ Provisions Difficult or Impossible to Execute 865 (object

of the will)

§ Illicit Provisions In Art 866 the word “object” is to mean the

aim, purpose or goal of the will. If the purpose of the will is
unlawful, its provision shall be of no legal effect.

§ Violence (Art. 867)

§ Undue influence (Art. 875)A person who take part in the

making of the will as a witness or as interpreter …article 870.
871,876.

§ Fraud (Art. 876)

§ Error (Art. 877)

When a will is made as a result of error, the provisions of the Civil

Code relating to invalidation of contracts shall apply. (Refer to the
Civil Code provisions (Arts 1697 — 1705 and 1808 — 1818))
Generally, the mistake which led the testator to make the will in
such a manner must be fundamental
 Form of wills

1. Public wills (Art. 881- 883 of cc)

A public will is a will that is read in the presence of the testator and of four
witnesses. The testator can write the will in the presence of the witnesses.
He/she can also write the will in the absence any person. That is, the testator
may write the will by himself/herself or he/she may get it written by another
person under his/her dictation in the presence of witnesses or even in the
absence of the latter.

· The most important thing, as far as a public will is concerned, is the will
has to be read in the presence of the testator and of four witnesses.

2. Holograph will (Art. 884 886)

Holograph will is a will that is totally made by the testator himself/herself in the
absence of witnesses. Only literate persons may make a holograph will. It is the
testator that writes a holograph will totally and if there is an additional word (even if it
is a single word) written by the hand of another person, that is a sufficient cause to
invalidate the will wholly.
Art 886 of the Civil Code advises the testator not to simply reproduce graphic symbols
without understanding their meaning.

With respect to Art 888, the will refers to another document the law under Art 888
requires that such a document or letter should be written and signed by the testator.

3. Oral wills (Art. 892- 894)

Oral will is a will made verbally with two witnesses. As you might have understood
from Art 892 of the civil code.

The testator does not make an oral will under normal circumstances. He/she makes
such a will when he/she feels that he/she is going to die within short period of time,
particularly after accidents, shocks or similar situations.

It can be said that oral will is not a proper will. The testator can make only restricted
testamentary dispositions through an oral will

The law has listed down the contents of an oral will. The testator cannot add other
testamentary dispositions, which are not included in Art 893.

If the provision of various will contradict each other and cannot enforced together the
latest will shall prevail article 895.

Proof of will

The one who claims a right in a will has to prove one or both of the following two things.
First, he/she has to prove the existence of the will. That is, he/she has to show a will
made by the testator. Second, he/she has to prove the contents of a will.
Art 897, one can see the following important points:

The existence and contents of a will (whether a public or holograph will) shall be
proved only by producing the original will itself or the copy of the original will, certified
to be true by the court registrar. The court registrar could issue the copy of the original
will.

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

If someone destroys or causes the destruction of a will by his/her fault or negligence,

such a person may be obliged to pay compensation to the beneficiary of the will. The
beneficiary can prove the fact that he/she is a beneficiary by any means of evidence.
For instance, he/she can prove that he/she is beneficiary of the will by producing
witnesses.

Revocation and lapse of wills

A) Revocation of wills (Art. 898- 901)

ü A will is always revocable, until the death of the testator.

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

a. By another will.
b. By an express intention to revoke, made in the same manner as a will, i.e.,
this must comply with the formalities set out by the law.
c. By destruction.
d. By alienation of the thing bequeathed Article 900
Lapse of wills (Art. 902- 908)

ü Lapse of will takes place by the operation of the law

o Failure to deposit a holograph will

According to Art 903 of the Civil Code, a holograph will shall lapse where it is not
deposited with a notary or in a court registry within seven years since it has been made.
No such imposition exists for a public will.
o Birth of child
Another reason for the lapse of a will is birth of a child. If a child is born after a will is
made (whether a public or a holograph will) such a will, shall lapse if the newly born
child accepts the succession. /Art. 905.
o Dissolution of marriage
According to Article 906 of the Civil Code, legacies made in favor of a spouse of the
testator shall lapse where the marriage of the testator with that spouse is dissolved
through divorce or court order when the marriage is concluded without observing the
conditions for the validity of marriage. However, such a legacy cannot lapse where the
marriage is dissolved by death.

o Death, unworthiness, or renunciation by a legatee

Contents and interpretation of wills

Content of the will
The testator can determine the contents of a will he/she makes freely so long as the
contents of his/her will do not violate the law or so long as they are not contrary to
public moral. Art 909 lists down the contents of a will. But this should not be seen as
an exhaustive list. It only gives us illustration.

Interpretation of wills (Art. 910 and 911)

Legacies by universal title and singular title

Legacy by universal title

ü The law itself does not clearly give the meaning these terms

ü Article 912 (1) the aspects of universal legacies.

ü When the testator gives his/her whole estate to one person the beneficiary is a
universal legatee.

ü When the testator gives a portion of his/her estate to one person

ü A universal legatee is the one who is called to the succession to receive a

certain portion of the hereditary estate, not a particular thing from the
succession. Therefore, a universal legatee does not know what thing he/she is
going to receive from the succession before the part ion of the succession.

No special will with special formalities is required to appoint a universal legatee (Art.
914).

ü When someone is appointed as a universal legatee, he/she is assimilated to an

heir–at–law

Legacy by singular title

According to Art 912(2), any other disposition (that is, outside the ones discussed
above) is a singular legacy. Singular legacies are minor testamentary dispositions
usually given to non–relatives. When a single item, such as a bicycle, a television, an
overcoat, a watch, a radio, etc., is given to someone.

Conditional Legacies (Art. 916- 919)

The testator may make his succession to depend on certain conditions. The
conditions are of two types’ suspensive conditions as condition precedent and
resolutive conditions as condition subsequent.

Suspensive condition — In the case of suspensive condition or condition precedent, the

legatee shall wait until a certain time lapses or until a certain circumstance occurs.
Therefore, the legatee will not be entitled to receive the bequest until the fulfillment of
the specified condition.

Resolutive condition — Resolutive condition or condition subsequent is a situation

where the legatee brings back what he received from the succession when a certain
condition is fulfilled. That is, in the case of resolutive condition, the legatee is
automatically entitled to receive the bequest, unlike the case of suspensive condition

Charge

Charge is the order of a testator against his/her heirs and/or legatees in which he/she
binds them to take some responsibility or take care of one or more persons. However,
the testator cannot bind the heirs and/or legatees to give or to do something to
specified persons more than the value of the legacy. /Art. 920- 923/.

Substitutio vulgaris

Substitutio vulgaris is the situation where the testator orders another person to take
the legacy in cases where the appointed universal or singular legatee fails to appear
and receive what the testator allocates to him/her. The causes for the disappearance
of the appointed legatee could vary from case to case. (See Article 928).
Entails

ü It is a restriction of inheritance to a limited class of descendants for at least

several generations.

ü It is mainly linked with real estate.

ü In Ethiopia, the testator has the power to order that his/her heir and/or his/her
legatee shall hand over the legacy to one or more persons after such heir and/or
legatee has benefited with the legacy.

The testator may order the heir and/or legatee to transfer the legacy or even portion of
it) to the specified person(s) upon the following conditions:

· On the expiry of a certain period, for example, after 5 years from the
opening of the succession;
· Upon the death of the heir or the legatee; and,

On the accomplishment of a certain condition, for instance, when the testator's little
daughter gets married.

Disherison (Art. 937- 940)

In the Ethiopian law of successions, the testator has wider rights to disinherit one or more of
his/her heirs by the will he/she makes. His/her rights may even go to the extent of
disinheriting all of his/her children, Only by express way Disherison is an order passed by the
testator to exclude his/her heirs from the succession. It usually serves as a means of
punishment for the misbehavior of his/her heirs