The law requires someone who alleges to have a right in the succession of the deceased to fulfill some requirements. One is expected to have capacity to succeed. This is one of the most important requirements to succeed the deceased. The capacity to succeed depends mainly on two conditions. The first one is; the heir and/or legatee must survive the deceased person. The second requirement is such heir and/or legatee must not be unworthy.  The first condition is an objective condition and the heir and/or legatee shall lose his right to succeed the deceased for reasons outside his volition.  The second condition is a subjective condition which occurs with a willful act of the heir and/or legatee.  (Read Articles 830 & 831 of the Civil Code)

A.   The Condition of Survivorship

This condition requires the heir to be alive at the time of the death of the deceased. To survive the deceased means, to be alive at the time of the death of the deceased.  That is, when the deceased is dead, the heir and/or the legatee of the deceased must be a living person. If the heir lives even for a very short time after the death of the deceased, we believe that he/she has survived the deceased. (See Article 830)

If two or more persons who have a reciprocal right to succeed each other die together, say in an accident, how do we conduct the succession of these persons? That is, which person has survived the other?

B.   Commorients 

This Latin word signifies those who die at the same time, as, for example, by shipwreck. When several persons die by the same accident, and there is no evidence as to who survived, the presumption of law is, they all died at the same time. Consider that “Frewoyni” is a mother and “Senait” is her daughter.  If “Frewoyini” and “Senait” die together, we may face some difficulties in conducting the successions of these persons.

After an accident, death may not occur immediately and some persons die before others. Death is usually considered as a process that may take longer time than we expect. When persons who have reciprocal rights to succeed each other (such as Frewoyni and Senait) die together, we could know by a post–mortem examination who survived whom.  However, this examination is not always successful. It could be impossible to determine who died first and who died second by a post–mortem examination. As research works in the field of forensic science reveal, determining the time of death through post mortem examination is one of the serious problems of the discipline. The law had to devise a mechanism for resolving the legal problems attached with commorients. That is, the law assumes that such persons have died simultaneously (at the same time) and hence no one has survived the other. 

Art. 832. — Persons dying simultaneously

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

According to Art. 832 of the Civil Code, if two or more persons with reciprocal rights to succeed each other die together and if it is not possible to determine the exact time of death of such persons, the law has devised an ingenious method to deal with the problem. That is, when the succession of each of these persons is considered, he/she will be seen as the last survivor. Assume that A & B (persons who have the reciprocal right to succeed each other) died in an accident and it was impossible to identify which of them died next to the other. Let’s now consider the succession of A.  In this case, A shall be seen as the last survivor. That is, B has died before A. Because B died before A, he did not survive A and has no capacity to succeed A. Let’s again consider the succession of B now. At this time, B will be considered as the last survivor. This means, A died before B. Therefore, A has no capacity to succeed B. As the final analysis, the effect of the assumption made by law is — these persons have not survived one another and they cannot succeed each other.

This assumption is made by the Ethiopian law and in some other countries there are different assumptions. For instance, according to Australian law, the elder person is presumed to have died before the younger one. The same is true with England and Wales laws.

C.   Death of Heir

If the heir is alive at the time of the death of the deceased (i.e., at the time of opening of his succession), then such an heir is said to have survived the deceased.  If the heir survives the deceased, he/she fulfills the requirment of survivorship. Therefore, an heir who dies even after a short period from the death of the deceased will not lose his capacity to succeed.  However, a problem arises if the heir himself/herself dies.  What will happen to his/her share  from the sucession of the deceased? According to Art. 833, all the rights of the heir in the succession of the deceased shall pass to the heirs of the heir. You can see the relevance of the time of opening of the succession clearly in this circumstance. Even if an heir dies sometime after death of the deceased, the heir is said to have died after getting the right to succeed the deceased.

$1D.   Unworthiness

The second condition to succeed the deceased is related with unworthiness.  That is, inorder to succeed the deceased, the heir and/or the legatee must not be an unworthy person. An heir and/or a legatee can become unworthy because of his criminal actions. The rationale behind this rule is that a person may not profit from his/her own crime. As you might have understood from your reading of Arts. 838 – 840, there are several factors that can make an heir  and/or a legatee unworthy.

$1·         The first crime that could make an heir unworthy is his intentional murder of:

$1o   The deceased himself,

$1o   The deceased’s descendant, 

$1o   The deceased’s ascendant or

$1o   The deceased’s spouse. 

You must rememeber that the heir and/or the legatee must be sentenced for his crime before he is considered unworthy.  Moreover, the murder must be made intentionally, not by negligence. 

The second reason that makes a person unworthy is, his/her attempt to kill the persons enumerated under Article 838 (a).  An attempt to kill a person is committing an act with the desire to kill a person but fail to do so because of an external cause. That is, the killing was prevented not by the wish of the one who has planned to kill a person, but by an external factor, such as shooting with a gun which is not loaded, or he/she missed the target because he/she did not aim straight, etc.

The third reason that makes an heir or legatee unworthy is a false accusation against the persons enumerated under Art 838(a). To make the heir or legatee unworthy, the false accusation must entail the condemnation of any of such persons to capital punishment or rigorous imprisonment for more than ten years.

Ato Bisrat died of liver disease. Ato Bisrat and Ato Zewdie were good friends.  Ato Zewdie’s son, Tariku, and his wife, Wude (stepmother of Tariku), do not like each other.  Tariku wanted to attribute the death of Bisrat to Wro Wude.  Thus he instituted an accusation against Wro Wude saying that she murdered Bisrat. But Tariku was sentenced to a two year imprisonment for falsely accusing Wro Wude.

Tariku is guilty of a false accusation against his stepmother, who is a spouse of his father. His false accusation could result in the condemnation of his stepmother for more than 10 years of rigorous imprisonment. Therefore, he committed a crime that would render him unworthy.

The fourth reason that could make an heir or a legatee unworthy is perjury.  Someone commits perjury when he/she stands as a false witness against somebody.  As the result of the false testimony of an heir or legatee, if one of the persons enumerated under Art 838 (a) of the Civil Code is condemned to a capital punishment or rigorous imprisonment for more than ten years, the heir or the legatee will become unworthy to succeed the deceased.

The fifth reason relates to the interference with the right or power of the testator in making a will.  The heir or the legatee in this case, by taking advantage of the physical state of the deceased, has prevented him from making, modifying or revoking a will.  Such heir or legatee shall be condemned as unworthy. This latter crime made by the heir/legatee is a crime that affects the rights of the freedom of the testator as far as making, modifying and revoking his/her will is concerned. Infringing upon a legally recognized right of the testator would the heir/legatee to a condition of unworthiness.

This could relate with his/her physical strength.  The deceased might have been sick for a long time and very weak physically.  The heir or legatee may take the advantage of this weak condition of the deceased to prevent him/her from making, modifying or revoking a will.

It must noted here that, in order to be condemned as unworthy, the heir or legatee must have committed this latter offence only within three months before death of the deceased.  If the offence is committed before this time, the law will not condemn the heir or the legatee as unworthy.  The law considers three months as sufficient time for the testator to think about the offence committed against his rights relating to making, or modifying or revoking a will and to act against the acts of the offender. If the testator keeps quiet for three months after the offence is committed, the law takes that as if the testator has ratified the acts of the offender.

If an heir or a legatee commits any of the offences which are listed under Art. 838 after the death of the deceased (which means after opening of the succession), he/she will not be deprived of his/her rights to succeed the deceased.  Because the heir has committed the crime after he/she is called to and got a right over the succession. It is said here that the crime has no connection with the succession.

It is the law that imposes a liability of unworthiness upon an offensive heir.  The imposition of unworthiness has an exception. Although the heir has committed the offences prescribed under Arts. 838 and 840, he/she would not lose his/her capacity as unworthy, if the deceased had given such heir an amnesty, or if he had forgiven him/her.  The pardon may be either an expressed or an implied one. A very common way of pardoning an heir is expressing the pardon in a will.  If the deceased made a will after the offence was committed, he/she could express his/her forgiveness in the will, to make the heir beneficiary of the will. If the had given a legacy to the offender after the occurrence of the offence with full knowledge of the commission of the offence, that would taken as another way of pardoning the offender.

E.   Unborn child

As it is indicated in Article 1 of the Civil Code, the human person is the subject of rights from its birth to its death.  From this, it may appear to you that a merely conceived child has no right to succeed.  However, this rule has an exception in that a merely conceived child could be considered born whenever his interest so requires. To attribute personality to a merely conceived child, it must be born alive and show its vigor for survival by its viability. “A child shall be deemed to be viable where he lives for forty-eight hours after his birth…”  (Article 4(1) of the Civil Code)

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

F.   Children born in marriage, outside marriage and adopted children

The Ethiopian law of succession makes no distinction based on the status of a child whether such child is born in marriage, outside a wedlock marriage or he/she is an adopted child.  Nevertheless, you should note here that the establishment of the paternity of an illegitimate child is duly obligatory before he claims to succeed the deceased, if the deceased is putative father. 

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

G.  Sex, age and nationality of heir

In most of the customs in Ethiopia, male children are favored to succeed their parents.  In some nationalities, female children are totally precluded from succeeding their parents.  Particularly this was true as far as succeeding land was concerned. The FDRE Constitution has recognized the property rights of women. Art 35(7) of the FDRE Constitution provides as follows:

“Women have the right to acquire, administer, control, use and transfer property. In particular, they have equal rights with men with respect to use, transfer, administration and control of land. They shall also enjoy equal treatment in the inheritance of property.”

Moreover, both the Federal and Regional land use and administration Proclamations have specifically addressed the constitutionally guaranteed rights of women on land. Irrespective of these legal efforts, women’s rights on land are not respected satisfactorily. There are still deep rooted beliefs in the many societies that women should not inherit land. However, there are encouraging reports in realizing these rights of women in almost all Regional States.

The Federal Rural Land  Administration and Land Use Proclamation № 456 of 2005 has some provisions which recognize the rights of women on land. For instance, Art 5 (1)(c) prescribes that—“Women who want to engage in agriculture shall have the right to get and use rural land.” Also Art 6(4) of the same Proclamation provides that—“Where land is jointly held by husband and wife or by other persons, the holding certificate shall be prepared in the name of all joint holders.”

Similar rules have been adopted by the Regional States’ land laws. For instance, the Southern Nations, Nationalities and Peoples Regional State’s Rural Land Administration and Utilization Proclamation № 110 of 2007 in its preamble stated that:

WHEREAS, it is believed that ensuring women’s land holding right is necessary for agricultural production and productivity and …”      

There are other important provisions which ensure the land rights of women in the Proclamation. From these efforts, it can be seen that there are some improvements in the recognition of land rights of women.

With respect to age, it cannot be a ground to discriminate heirs.  As long as there is no valid will left by the deceased that discriminates the heirs based on their ages, the rights of the heirs to inherit the deceased cannot be affected by their age.  For example, if the deceased has a 50 year old son and a 5 year old daughter, both of them have the right to succeed him. Moreover, there is no primogeniture right under the Ethiopian law. That is, the eldest child has no special privilege in the succession of parents. The same is true with respect to nationality of the heir. But this rule is subject to the provisions of the Civil Code which restrict ownership of immovable property by foreigners. (See Articles 390 — 393)

The literal meaning of patrimony is the estate that descended from the father to his descendants.  However, this does not exclude the estate that descends from the mother to her descendants and/or from other ancestors in the paternal as well as in the maternal line. 

In the law of property, patrimony may have a different meaning.  As it is discussed in Marcel Planiol, a person’s rights and obligations appreciable in money looked upon as a whole are called his/her patrimony.  There is a link between a person and patrimony.  This link can be expressed in the following four ways:

A)   Only persons have patrimony with the exclusion of other beings. Persons are beings that are capable of having rights or owing obligations.

B)  Every person necessarily has a patrimony, irrespective of the fact that the person has no property at all.  Patrimony is linked to the personality of the person.

C)    Patrimony is a unit.  All the property and all the charges of a person form a single mass.  However, this principle of unity of patrimony is subject to exceptions.  One example of the exceptions is — an heir seems to have two patrimonies.

D)       Patrimony is inseparable from the person.  Therefore, there can’t be a total transfer of property of the person while he/she is still alive.  A person can dispose only part of the constituent elements of his/her patrimony, one after the other.  His/her patrimony, considered as universality, is the consequence of his/her own personality and necessarily remains attached to his/her personality.  Transmission of patrimony in its totality takes place only after the person’s death.  At that moment, the deceased’s patrimony is attributed to his/her successors.

Many legal experts argued, based on these principles of patrimony, that a person should not have the right to regulate his/her estate after his/her death, as death has brought a complete separation of the person and patrimony.  (See Wills below for details of discussion on this point)

Opening of Succession

As it is expressed in Article 826 of the Civil Code, the succession of the person opens at the place he/she had his/her principal residence at the time of his/her death. (For detailed consideration of the concept of residence, refer your Law of Persons material.)  According to Article 174 of the 1960 Civil Code, the residence of the person is the place where he normally resides. The normality of residence will show that the person’s socio-economic life in the society. When a person has many residences, one of such residences may be considered as a principal residence of such person. For the purpose of opening of the succession of the deceased, it is appropriate to consider the principal residence of the deceased the place where he/she has most of his/her inheritable property.  

The succession of the deceased shall open just at the time of his/her death. Assume that Ato Markos, in the above example, died on August 29th just at 3:00 O’clock in the afternoon; Ato Markos’s succession has opened at the moment when his death occurred. That is, his succession has opened just at 3:00 O’clock. The deceased may have his/her societal ties at his/her principal residence.

According to Article 1 of the Civil Code, the human person is subject of rights (and also duties) from its birth to its death. This means a dead person has no rights or duties. But there are certain rights and obligations of the deceased person that pass to the heirs and/or legatees of the deceased.  There are also rights and obligations of the deceased that terminate with his/her death. Most of the rights and obligations that are associated with the person of the deceased shall extinguish with the death of the deceased. However, many of the rights or obligations that are related with the property and/or money of the deceased shall pass onto his/her heirs and/or legatees.

Some obligations of the deceased could also pass to his heirs and/or legatees.  For instance, if the deceased is a debtor, his heirs and/or legatees are bound to pay back his debts. As you will learn in the future, the heirs and/or legatees of the deceased will not be bound to pay the debts of the deceased from their own personal property.  They are only bound to pay such debts from the property of the inheritance, according to the rules of the Ethiopian law of successions.

Things making up a Succession

Generally speaking, what transfer from the deceased to his/her heirs and legatees are those rights and duties of the deceased which arise from various relations which the deceased had with third parties during his/her lifetime. It is possible to indicate some of the principal relations between the deceased and third parties which can serve as source of rights and duties of the deceased like: contractual relations the deceased had with third parties; contract of insurance between the deceased; rights which arise from court proceedings between the deceased and third parties; and those rights generally referred to as property rights – those rights we create and exercise against things, corporeal (movable or immovable) or incorporeal.

Under this sub-section, discussions will be made on the features of inheritable property of the deceased. As a matter of principle, all of the property which were owned or possessed by the deceased on the day of his/her death shall constitute his/her inheritance. All the inheritable property left by the deceased at the time of his/her death are called the hereditary estate.  The hereditary estates are not limited to corporeal (tangible) things.  They also include incorporeal (intangible) things such as the works of the mind or literary rights.

Sometimes it may be difficult to clearly identify the property of the deceased that constitute the inheritance.

Life insurance

As prescribed in Article 827 of the Civil Code, life insurance could or could not constitute a hereditary estate.

Art. 827. — Things making up inheritance. — Life insurance

$1(1)               Monies due in performance of a contract of life insurance to which the deceased was a party, shall form 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 without any other indication.

(2)               In other cases, they shall not form part of the inheritance.

Read also the following provision, which is taken from the Commercial Code of 1960.

Art 691. — Definition

A life insurance is a contract whereby the insurer undertakes against the p ayment of one or more premiums to pay to the subscriber or to the beneficiary a specified sum on certain conditions dependent upon the life or death of the subscriber or third party insured.

From the definition of life insurance it can be seen that:

A)    Life insurance is a contract.

B)    The contract is made between the insurer (insurance company e.g. the Ethiopian Insurance Corporation) and the subscriber (a person who buys the life insurance policy and makes a periodical payment of premiums to the insurer).

C) The insurer undertakes or commits itself to pay the agreed amount of money to the beneficiary upon death of the subscriber.

How life insurance would make up inheritance is an important question that deserves discussion. Read the following example carefully.

Only under the above two conditions that the money to be collected from the insurer upon death of the subscriber forms part of the inheritance.  If the subscriber, Wro.  Genet, designates her spouse or only one of her children, or any other person, the money to be collected upon death of the subscriber of the life shall not form part of the inheritance of the subscriber. In this case, the money will be available only to the designated beneficiaries. 

There is no unanimity in decisions of courts of various levels regarding the rule under Art. 701(2) is concerned. Some courts make this provision applicable to all cases. For instance, if Ato Kassa buys a life insurance policy to the benefit of his brother Gobena, some courts make his wife Wro. Chaltu and his children Meron and Abdissa beneficiary of the life insurance.  These courts mainly base their arguments on the expression of the law that says the subscriber’s spouse is beneficiary even if the marriage is concluded after the policy was entered and also the subscriber’s children are beneficiaries even if they are not mentioned by name. Other courts do not accept this argument. The Federal Supreme Court usually rejects decisions on such arguments. According to the latter courts, it is only the person who is indicated as beneficiary who is going to collect the money. The spouse shall be beneficiary only when the subscriber makes her/him beneficiary, even the insurance is entered before the conclusion of the marriage. The subscriber must indicate that his wife or her husband shall be beneficiary of the life insurance. Likewise, he/she must indicate that the insurance is made to the benefit of his/her children without indicating their name. If a spouse or the children are not indicated in this manner and if another person is appointed as beneficiary, they have no chance of becoming beneficiaries.

Which line of argument do you favor?  

For detailed information on this issue, read Journal of Ethiopian Law, Vol. 16, pp 67—80 and Ethiopian Bar Review, Vol. 1 № 1, pp 35—94

Pensions and Indemnities

In Ethiopia, pension is regulated by ‘Public Servants’ Pensions Proclamation № 345/2003 and the amendment Proclamation № 424/2004. The main purpose of pension scheme in Ethiopia is to support the person who was a public servan during the time when he/she is unable to work. In addition to this, the pension scheme has the purpose of supporting those persons who were maintained by the pensioner during his/her life time. Pension is money payable to the spouse, children or parents of the deceased person based on conditions specified under Proclamation № 345/2003.  The mechanism of payment is regualted by Articles 34 — 39 of this Proclamation.  According to Art 35(1) of this Proclamation, if a person who is a government employee dies, the widow or the widower would be entitled to receive 50% of the pension to which the deceased was or would have been entitled.  The Proclamation also prescribes the amount of orphan's pension and parent's pension.  Accordingly, each of the deceased's children would receive 20% of the pension to which the deceased was or would have been entitled.  Orphans are entitled to receive this amount so long as they are less than 18 years of age.  The money collected from pension allowance can be given to the persons who were supported by the pensioner. Pension money is not the estate left by the deceased at the time of his death. The purpose of pension is, as indicated above, to support the pensioner when he/she is unable to earn his/her livelihood through his/her work or to support those who were dependent on the pensioner (only spouse and very close relatives) upon his/her pension allowance. The spouse or the relative of the pensioner has no right to pass the pension allowance to which he/she is entitled to his/her heirs when he/she (the spouse or the relative) dies. Therefore, pension allowance does not constitute the hereditary estate of the deceased.

Indemnity is money to be paid to the spouse or relatives of the deceased person.  Assume that a car hits Dawit and killed him. The driver or the owner of the car may be obliged to pay compensation to the spouse or relatives of Dawit.  These persons sustained injury because of the death of Dawit.  The one who caused the death of the person may pay compensation or indemnity to these persons.  However, such money cannot form part of the inheritance of the deceased. For instance, if the person who is entitled to receive the indemnity payment dies, the money cannot go to his heirs.

A person’s succession may be conducted in one of the two types of successions. As it is prescribed in Art. 829, succession could be either testate or intestate. It could also be the combination of the two types. Testate succession is a succession in which the estate of the deceased person shall pass to his heirs and/or legatees according to the order of the deceased in the will he/she made.  If the deceased made a valid will, his/her succession would be conducted in accordance with the will. A person who left a will is called a testator.  The testator shall regulate as to what should happen to his property after his death. If the testator had no will at all, or his/her will is not valid, the succession of such person shall be conducted by the operation of the law.  That is, in the case where there is no will, or where the will is invalid, the law shall distribute his estate among his heirs.

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