Law Of Successions - A Blog About Ethiopian Law

chilot.wordpress.comLaw of SuccessionsTeaching MaterialPrepared by:Mellese Damtie [LL.B., LL.M.]Assistant Professor of Law, ECSC&Solomon Kikre (LL.B., LL.M.)Lecturer in Law, Hawassa Unive rsityPrepared under the Sponsorship of the Justice and Legal SystemResearch Institute2009

chilot.wordpress.comTABLE OF CONTENTSPageINTRODUCTION .1- Background and Context .1- Description of the Course .2- General Course Objectives .4- Goals and Scope of the Material .5- Contents and Organization .6CHAPTER ONE - DEVOLUTION OF SUCCESSION . 81. 1.1. 2.1. 3.General Considerations of the Devolution of Successions . 91. 1. 1.The Concept of Patrimony .91. 1. 2.Opening of a Succession .101. 1. 3.Things making up a Succession 121. 1. 4.Capacity to Succeed .17Intestate Succession . 271. 2. 1.Devolution according to the Degree of Relation .271. 2. 2.Rule “paterna-paternis, materna maternis” .301. 2. 3.Escheat .321. 2. 4.Representation and Renunciation .32Wills .341. 3. 1.1. 3. 2.1. 3. 3.Conditions for the Validity of Wills 35Form and Proof of Wills .45Revocation and Lapse of Wills .62i

chilot.wordpress.com1. 3. 4.Content and Interpretation of Wills .681. 3. 5.Conditional Legacies 731. 3. 6.Charges 741. 3. 7.Substitutio vulgaris .751. 3. 8.Entails .751. 3. 9.Disherison 77CHAPTER TWO - LIQUIDATION OF SUCCESSION ANDDETERMINATIONOFRIGHTFULSUCCESSORS .812. 1.Preliminary Considerations .812. 1. 1.The Essence of “Liquidation” .812. 1. 2.The Guiding Principles of Liquidation .832. 1. 3.General Objectives of the Chapter 862. 1. 4.Organization of the Chapter .862. 2. The Liquidator of a Succession . 882. 2. 1.Who is the “Liquidator”?.882. 2. 2.The Manner of Appointment of the Liquidator 892. 2. 3.2. 2. 2. 1.Designation by Law 892. 2. 2. 2.Appointment by Will .902. 2. 2. 3.Incapable Liquidator .922. 2. 2. 4.Appointment by Court . 932. 2. 2. 5.Other Cases of Judicial Appointment .93Nature of the Functions of the Liquidator .94ii

chilot.wordpress.com2. 2. 4.2. 3.Powers and Duties of the Liquidator 95Identifying Rightful Successors 1002. 3. 1.Provisional Determination .1002. 3. 2.Option of Heirs and Universal Legatees .1052. 3. 3.Certificate of Heir .1132. 3. 4.Petitio Haereditatis .1162. 4.Administration of the Succession .1192. 5.Payment of Debts Claimed from the Succession .1242. 6.2. 5. 1.Introductory Remarks 1242. 5. 2.Order to be Followed 1252. 5. 3.Funeral Expenses 1252. 5. 4.Expenses of Administration and Liquidation 1272. 5. 5.Debts of the Deceased 1282. 5. 6.Debts Relating to Maintenance 1312. 5. 7.Payment of Singular Legacies .135Closure of Liquidation 145CHAPTER THREE – PARTITION OF SUCCESSION . 1493. 1.Introduction .1493. 2.Community of Hereditary Estate 1503. 3.Collation by Co-heirs 154iii

chilot.wordpress.com3. 4.The Modalities of Partition 1603. 5.The Relation between Co-heirs after Partition .1613. 6.3. 5. 1.Warranty due by Co-heirs 1623. 5. 2.Revision and Annulment of Partition 1653. 5. 3.The Right of Creditors Coming after Partition .167Conventions Relating to an Inheritance .1703. 6. 1.Pacts on Future Successions 1703. 6. 2.Partitions made by Donations .1743. 6. 3.Assignment of Rights to a Succession .178Bibliography 179Annexure .181iv

chilot.wordpress.comLaw of SuccessionsPage 1INTRODUCTIONBACKGROUND AND CONTEXTArticle 1 of the Civil Code - an overwhelmingly influential provision that lays the foundationfor virtually the entire legal framework of the country – declares that “the human person isthe subject of rights [and duties] from its birth to its death”. The message this exceptionallyimportant article purports to convey is pretty clear: that a human person starts to holdrights and to assume duties as of birth and ceases to do so upon death. In the context of thepurpose at hand, that means a human person will no longer have rights or duties as ofdeath. The same - albeit with certain slight qualifications - goes also for an absentee, whomthe law assimilates to the dead, at the time when he is duly declared absent.The implication of the provision is that a person will permanently stop to have both rightsand duties from the moment at which he is considered dead in terms of the language of thelaw. That does not, though, in any way mean that the rights and duties of such a person willdie, or be disposed of with him – at least not in its modern sense. True enough, those rightsand duties, such as an academic or military rank, that have strictly to do with the person ofthe dead - and thus do not form part of the inheritance - will terminate upon death.The vast majority of the rights and duties that the dead had acquired while alive will,however, pass to other persons – usually his surviving next of kin. Nevertheless, thedevolution does not happen arbitrarily. The law systematically regulates how a person’sestate is disposed of upon death.Speaking in rough general terms, the Law of Successions is that branch of law which governsthe manner in which, and, of course, to whom, the rights and duties of a dead person,technically referred to as the deceased, should pass. What is at stake here is the devolutionof private rights and duties. And the parties involved at both ends of the game are personswho act in an individual capacity representing private interests. It goes without saying,1

chilot.wordpress.comLaw of SuccessionsPage 2therefore, that the Law of Successions belongs to the civil/private law category in the familytree of laws.DESCRIPTION OF THE COURSEThe Course, hence its name, is a study of primarily how the Ethiopian Law of Successionsregulates the devolution of the succession of a person. As a matter of rule, successionrelates only to the disposition of the estate of a person who has died. It has nothing to dowith the rights and obligations of a living person.Those rights and duties that devolve by succession were acquired by the deceased duringhis lifetime. And they are generally of proprietary nature. Moreover, they devolve topersons validly designated by him or, in default of such designation, in accordance with theprovisions of the law. The successors are mostly the deceased’s next of kin, viz. people whoare related to him pursuant to either of the lines of familial relationship stipulated by familylaw.Consequently, the Law of Successions is inextricably intertwined with many other branchesof law including, but not limited to, the laws of family, property, and contracts, not tomention the basic law – the constitution. Among the most striking instances of the intimatelink the Ethiopian Law of Successions has with family law and, by extension, with thecountry’s Constitution is that it promotes equality with respect to succession by, forexample, providing for an identical treatment of men and women, as well as all children –irrespective of whether they are legitimate, illegitimate, or were adopted. What is more,taking a cue from property law, it recognizes the right of a person to dispose of his propertyhowever he likes after his death, on condition that he does so by a legally valid will.We can make one simple inference from the mutual interrelation the Law of Successions haswith various other branches of laws: That is, the Course presupposes cross-disciplinaryknowledge. Naturally, this implies the indispensability of an interdisciplinary approach. Butmainly because of the requirements of the level at which the Course is intended to be2

chilot.wordpress.comLaw of SuccessionsPage 3administered, the approach employed here is chiefly specific. That is, it is largely confined tothe study of the provisions of the Ethiopian Law of Successions.Generally, the Course explores how the Ethiopian Law of Successions strives to strike abalance between its two apparently contradictory major objectives. On the one hand, thelaw goes to a great length to respect the right of the deceased to dispose of his property inwhatever lawful way he thinks fit even after his death. And on the other, it tries to protectthe interests of rightful successors and creditors, who have legitimate claims over thesuccession.Specifically, in connection with what is technically called testate succession, the Courseresearches what, besides allowing the deceased power to stipulate the modalities ofdevolution of his own succession, the law has to say about the types, and the validityrequirements of wills by which the deceased may dispose of his estate; his power ofdisherison and the scope thereof; whom he may or may not designate to receive hisinheritance and the conditions he may or may not attach thereto ; etc. It also assesses themanner in which the Law regulates intestate succession - the devolution of the succession ofa person who has left no will at all, or that of a person a competent court of law hasdeclared the will purportedly left by him not valid. The Course also examines possiblescenarios of partly testate and partly intestate successions.A succession, whether testate or intestate, consists in the gross rights and obligations of thedeceased when it opens at the time of the death of the later. So, before any right or duty isexercised in connection with the inheritance, the net worth of the succession must bedetermined and persons who have legitimate claims over the succession must be screenedout. In other words, there should be a winding up of the deceased’s affairs in which theassets and claims owned are identified and collected, debts and taxes ascertained and paid,maintenance claims entertained, and singular legacies ordered by the deceased, if any, paidbefore any property or right of the inheritance is delivered to properly identified successors.The Course deals in a detailed fashion with how the law governs this winding up process,which is in the law of successions technically referred to as “liquidation” of a succession.Furthermore, the Course looks into the prescriptions of the Law for the treatment of issues3

chilot.wordpress.comLaw of SuccessionsPage 4that may arise subsequent to liquidation. It, among others, specifically dwells upon themanner of partition of the property of the inheritance remaining after the winding up of theliquidation process. It also considers the notion of collation, the right of creditors whoappear after partition, and pacts in relation to succession.GENERAL COURSE OBJECTIVESOverall, the Course is designed to sufficiently equip students with the knowledge and skillsthey need to oversee the devolution of the succession of a dead person themselves, to givesound expert advice on succession-related issues, and to solve both real and hypotheticalcases in the area of successions in accordance with the relevant provisions of the law.Specifically, it is expected that after completing the Course, students will be able to, interalia: Discuss the meaning, time, place, and manner of opening of a succession; Identify those things that make up the inheritance of a dead person and those that donot; Enumerate the kinds of successions recognized by law; Elaborate the meaning of capacity to succeed and the conditions required therefor; Identify those persons who have the capacity to succeed a dead person and those thatdo not; Discuss the meaning of intestate succession, and enumerate, in order of t heirpreference, the persons called to the succession of a person who had died intestate; Dissertate about the power of a person to dispose of his property after his death; Name the kinds of wills recognized by the Law, and discuss the validity requirementsattached to each; State the available legal methods to prove the existence and contents of a will; elaborate the possible grounds for the partial or full invalidation of a will; Internalize the meaning of liquidation of a succession;4