BAHIR DAR UNIVERSITY

LAW FACULTY
DISTANCE PROGRAM

LAW OF SUCCESSION

PREPARED BY ALI MOHAMED

EDITORS:

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 CONTENTS PAGE

CHAPTER ONE - THE HISTORICAL DEVELOPMENT AND PURPOSE OF THE LAW

OF SUCCESSION ...........................................................................
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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 Paterns 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
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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

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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

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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

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 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.

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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

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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.

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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.

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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?

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 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?

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 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 would be the effect of this

interpretation on the

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 pass 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 thirtys 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.

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 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?

90
 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.

93
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.

95
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,

96
 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.

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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.

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 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

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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.
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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

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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
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 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.

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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.

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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

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 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
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 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.

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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

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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 testators 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

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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
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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.
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 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.

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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 testators 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.

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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
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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 to explain what constitute Animus testandi. But

most 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.
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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 testators 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.
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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 660-
867 and Art 876, Art 877 of the Civil Code?
What is the importance of the rules enshrined in Arts 868-
874 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

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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 mans 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 testators
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.

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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 persons 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.

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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.
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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 testators 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 testators 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?

145
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

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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.

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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.

150
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
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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 non-
notorious 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.
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 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

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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

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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

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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

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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.

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 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 testators 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 testators 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
deceaseds 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

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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
deceaseds 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 testators 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.

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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 testators 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 testators 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 Blacks 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.

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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 testators 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.

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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 testators 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 testators 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.

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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 testators
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 testators 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 testators 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 testators 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,

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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 writers 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

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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

200
 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

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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,

206
 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

207
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

208
 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.

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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,

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 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

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 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;

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 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.

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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

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 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 heirs-

at-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

233
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

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 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

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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

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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

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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

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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.

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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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