Although punishment has been a crucial feature of every legal system, a widespread disagreement exists over the moral principles that can justify its imposition.

One fundamental question is why and whether the social institution of punishment is warranted.  The second question concerns the necessary conditions for punishment in particular cases. The third relates to the degree of severity that is appropriate for particular offenses and offenders.

Since punishment involves pain or deprivation that people wish to avoid, its intentional imposition by the state requires justification. The difficulties of justification cannot be avoided by the view that punishment is an inevitable adjunct of a system of criminal law.

The question: "what are the rationales behind punishment?’’ remains unanswered.  This question will soon take us to the theories of punishment. Generally, punishment contributes to the preservation of public order through inflicting the wrong doer who is expected to behave in the future to become a good citizen and to inspire fear in any one "who witness the punishment of wrong doer, and to make them prudent."  This is the primary rational of punishment. 

There are theories of punishment of which the following are generally been regarded as the most important

Retribution

It is the oldest of the rationales for punishment tracing its root to the Bible.  For instance Leviticus 24:17-22 reads:

" when one man strikes another and kills him ,he shall be put to death … when one injures and disfigures his fellow country man, it shall be done to him as he has done; fracture for fracture, eye for eye, tooth for tooth."

Retribution is often assimilated to revenge, but a public rather than a private one.  Retribution is based on the principle that people who commit crimes deserve punishment.  In that sense, the theory is backward looking: the justification for punishment is found in the prior wrong doing.

Retribution theory punishes the offenders because they are deserving of punishment. It says to the offenders: "you have caused harm to society; now you must pay back society for that harm. You must atone for your misdeeds.

Implicit in retribution is the condemnation or denunciation of both the offender and the offending behavior.

Retribution, however, is not in a kind.  Society cannot rape rapist or steal from thief, although in some countries death penalty is exacted for murder.

Instead, the law tries to convert the offence into a common currency to impose a sentence which is proportional to the harm caused.

In this regard, it might be observed that retribution, with its emphasis on proportional punishment, provides a basis for the grading of offences.

Deterrence

Deference is one of the several rationales of sentence.  It is described as 'consequentionalist' in the sense that it looks into the preventive consequence of sentence.  It relies on the threats and fear though sentencing.  Deterrence is based on the belief that crime is rationale and can be prevented if people are afraid of penalties.

There are two types of deterrence; namely General deterrence and specific deterrence.

General Deterrence

Knowledge that punishment will follow crime deters people from committing crime, thus reducing future violations of right and the unhappiness and insecurity they would cause.

It aims at deterring other people who witness punishment and like minded with the offender, from committing this kind of offence.

It makes other people prudent by inducing the public to refrain from criminal conduct by using the defendant as an example of what will befall a person who violated the law.

J. Bentham, the main proponent of this theory argues that all punishment is pain, and should therefore be  avoided, however, it might be justified if the benefit in terms of general deterrence would outweigh the pain inflicted on the offender punished and if the same benefits could not be  achieved by non-punitive methods

Sentence should therefore be calculated to be sufficient to deter other from committing this kind of offence, no more no less.

Specific Deterrence

A goal of criminal sentencing that seeks to prevent a particular offender from engaging in repeated criminality.  The actual imposition of punishment creates fear in the offender that if the repeats his act, he will be punished again.

Adults are more able than small children to draw conclusions from the punishment of others, but having a harm befall oneself is almost always a sharper lesson than seeing the harm occur to others.  To deter an offender from repeating his actions, a penalty should be severer enough to outweigh in his mind the benefits of the crime.

For the utilitarian, more severe punishment of repeat offenders is warranted partly because the first penalty has shown itself ineffective from the stand point of individual deterrence.

Incapacitation

Incapacitation is the use of imprisonment or other means to reduce the likelihood that an offender will be capable of committing future offenses.

It makes the offender incapable of offending for substantial period of time.  It is popular form of "public protection" and sometimes advanced as general aim.

This pragmatic theory argues that offenders need to be separated from the rest of the society in order to protect ordinary citizens from their committing other offences. The implicit premise is that, if not incarcerated, offender will continual in their criminal way.

In ancient times, mutilation and amputation of the extremities were sometimes used to prevent offenders form repeating their crimes.

Modern incapacitation strategies separate offenders from the community to reduce opportunities for further criminality.  Incapacitation is sometimes called the " lock' em up approach’’ and  forms the basis for the movement forward prison  "warehousing."

It is confined to particular group, such as "dangerous" offenders, career criminals or other persistent offenders.

                                                                

Capital punishments and severing of limbs could be included as incapacitation punishment. But there are formidable humanitarian arguments against such irreversible measures.

What has been claimed for incapacitating sentencing is the imposition of long, incapacitating custodial sentence on the offender deemed to be dangerous.  The proponents of this theory argue that one can identify certain offenders as dangerous who are likely to commit serious offence if released into community in the near future and the risk of victims are so great that it is justifiable to detain  such offender for long period.

Opponents of this theory have chief objection: over prediction.  They say that incapacitating sentencing draws into its net more non dangerous than dangerous offenders. For instance, in the UK study indicates that only 9 of 48 offenders predicted as dangerous committed dangerous offences within five years of release from prison.

An equal number of dangerous offences were committed by offenders not classified as dangerous.

This indicates that there are hundreds of offenders serving discretionary sentence of life imprisonment in the UK and Wales, imposed on the ground of predicted dangerousness, and  there is no way of telling, whether the predictions on which these sentences rest are not over caution in ratio of two – to – one.

Rehabilitation

Rehabilitation seeks to bring about fundamental changes in offenders and their behavior.   As in the case of deterrence, the ultimate goal of rehabilitation is a reduction in the number of criminal offenses.  Whereas deterrence depends upon a fear of the law and the consequences of violating it, rehabilitation generally works through education and psychological treatment to reduce the likelihood of future criminality. This theory argues that too much alternation was given for crime, and little was given to the criminals

This theory rests upon the belief that human behavior is the product of antecedent causes that these causes can be identified, and that on these basis therapeutic measures can be employed to effect changes in the behavior of the person treated.

This requires modification of attitudes & behavioral problem through education and skill training. The belief is that these might enable offenders to find occupation other than crime

If a dangerous offender needs to be located until he/she is no longer dangerous, it is the duty of the state to rehabilitate the offenders so that they can be released.  That is why rehabilitation is termed as the other side of restraint coin.

This theory closely related with forms of positivist criminology which locates the causes of criminality in individual pathology or individual maladjustment whether psychiatric, psychological or social.

This theory tends to regard the offender as a person in need of help and support.  At says that criminals are socially sick people who need some kinds of treatment.

Social theories of Sentencing.

They are contemporary theories. It is a dissatisfied response to the four "traditional" theories of punishment which deal with sentencing in isolation from its wider social and political setting.  These theories attempt to make sentencing principles more responsive to social condition and community expectation.  Three of these tendencies are:

Barbara Hudson

According to Barbara, priority should be given to crime prevention and to reducing the use of custody by the penal system.  Hence, changes in social policy (employment, education, housing, leisure facilities) are more important to justice than debate about proportionality of sentence.

When coming to sentencing, there should be greater concern with the problems of whole human being than particular pieces of behavior. More emphasis should be given to "rehabilitative’’ opportunities.

Nicola Lacey

The first thing must be the states recognition of its duty to foster a sense of community by providing proper facilities and fair opportunities for all citizens.  Once this is achieved in a community, punishment is justified as re-enforcing the value that has been decided to protect through criminal law.

John Braitwaite & Phillip Petit: Republican Theory of Criminal Justice.

The central value of this theory is dominion, defined in terms of  each citizen’s ability to make life choices with a social and political framework which each citizen has  participated & then to be protected in those choices.

Conflict among Different Theories 

 

For many years, most of the literatures on the subject of punishment were devoted to advocacy of a particular theory to the exclusion of others.

Those who espoused the rehabilitation theory condemned the other theories, while, those who favored the deterrence theory denied the validity of all the others, and so on.

For instance, if criminals are sent to prison in order to be transformed to good citizen by physical, intellectual, and moral training, prison must be turning into dwelling house  far too comfortable to serve  as any effective deterrent to those classes from which criminals are chiefly drawn.

In the cases of incorrigible offenders, there are people incurably bad, or some men who by some vice of nature, are even in their youth beyond the reach of reformative influence.

The application of purely reformative theory therefore, would lead to astonishing and inadmissible result. The perfects system of criminal justice is based on neither the reformative nor the deterrent principle exclusively, but the result of compromise between them.

In this compromise, it is the deterrent principle which would possess predominate influence, and its advocates who have the last word. This is the primary and essential end of punishment. All others are merely secondary and accidental.

It is necessary, then, in view of modern theories and tendencies, to insist on the primary importance of deterrent element in criminal justice.  The reformative element must not be overlooked.

For instance, in case of youth criminals and first offenders, chances of effective reformation are greater than that of adults who have fallen into offences.

Finally' let us evaluate the Federal Criminal Code (2004) inline with these theories. Article of the code declares the object and purpose of the Criminal Code and it reads: The purpose of the Criminal Code   of the Federal Democratic Republic of Ethiopia is to ensure order, peace and security of the State, its peoples, and inhabitants for the public good.

It aims at the prevention of crimes by giving due notice of the crimes and penalties prescribed by law and should this be ineffective, by providing for the punishment of criminals in order to  deter them from committing another crime and make them a lesson to others , by providing  for their reform  and measures to prevent  the  commission of further crimes.( Emphasis added by the writer)

The first paragraph of the above Article talks about the overall purpose of the Criminal Code, whereas the second paragraph states how that purpose can be attained, As it is clearly stated ,  the Criminal Code  has been designed to attain it  by preventing the commission of the crime. Prevention of the crime in turn is intended to be attained by giving due notice of the crime and penalties prescribing in the Code Due notice the public may be given to the public through publication of the Criminal Law and this may in turn gives access to all citizens and inhabitants to be aware of what acts or omissions are crimes and the respective penalties.

This does not mean that all those who are aware of the crime and penalties may always respect the law always. It is true that people may disregard and transgress the law. It is this situation the criminal Law in advance predicts and provides penalties when saying: "…should this be ineffective, providing for the punishment of criminals…"

The very Provision states the prime purpose of punishment. As it is clearly stated under this Article, the vital purpose of punishment is to deter the offender from committing fresh crime  and also to deter other with inclination to commit a crime .This conclusion can be inferred from the phrases  of the provision which says : …in order to deter them from committing another and make them a lesson to others….

This is also emphasized in the Preface of the Code on page IV, and it reads: Punishment can deter wrongdoers from committing other crimes; it can also serve as a warning to prospective wrongdoers.

Hence, the words lesson used in Art.1 and warning used in the Preface address the general deterrence, while the Code directly intends to deter the wrongdoers.

One can also understand the fact that the Code has also incorporated a rehabilitation theory for the Code clearly states this when it says: …by providing for their reform and measure …

The rehabilitative approach of the Code is further elaborated in the Preface page IV and it reads: …with the exception of the death sentence, even criminals sentenced to life imprisonment can be released on parole before serving the whole term; in certain crimes convicts can be released on probation with out the pronouncement of sentence or without enforcement of sentence pronounced. This helps wrongdoer to lead a peaceful life and it indicates the major place with the Criminal Law has allocated for their rehabilitation.  (Emphasis supplied)

The Preface further reads:  The fact that the wrongdoers instead of being made to suffer while in prison take vocational training and participate in academic education which would benefit them upon their release, reaffirms the great concern envisaged by the Criminal Code about the reform of criminals. (Emphasis supplied)

Different kinds of punishments are devised in the Code to attain the purposes. Just to mention some, simple imprisonment and pecuniary penalties have deterrent value. The same holds true for warning, reprimand, admonishment and apology from secondary penalties. (Art.122)  It may also give a chance to an offender for rehabilitation.

Neither Art.1 nor the Preface makes reference to incapacitation theory. However, does not mean that the Code has not adopted this theory, because this can be inferred from the following kinds of punishment: rigorous imprisonment that may be imposed on offenders committed serious offence. As it is provided for as per Art. 108 of the Code, besides punishment rigorous imprisonment is intended to separate the offender from the community  by applying strict confinement of the criminal for special protection to society. But the law tried to attain trio of purpose by rigorous imprisonment: incarceration, rehabilitation, and deterrence.

Death penalty is another typical example of incapacitation incorporated in the Code. Furthermore it has deterrence value to others with similar potential to commit a crime.

To mention secondary penalties of incapacitate nature, suspension and withdrawal of license, Art. 142 prohibition and closing of undertaking, Art.143 Measures entailing a Restriction on personal liberty, Arts.145 and the following and etc.

One can rightly say that the Ethiopian Criminal Code has followed the modern approach because it has incorporated different types of theories and different kinds of penalties are incorporated to serve these purposes. However, no single punishment is devised just to serve a single function of punishment.

A.      Contents of wills

The testator can determine the contents a will he/she makes freely so long as the contents of his/her will do not violate the law or so long as they are not contrary to public moral. Art 909 lists down the contents of a will. But this should not be seen as an exhaustive list.  It only gives us illustration.  These enumerations may guide the testator. However, it does not mean that he/she has no power to declare dispositions that are not listed in Art 909.  You can infer this from Art 909 (e).  The only limitation with respect to the contents of a will is, the testator cannot declare in his will anything illegal and/or immoral.

 

The general rules of interpretation of statutes may be helpful also to interpret the provisions of a will.  When the provisions of a will are doubtful, we may need to interpret them.  The intention of the testator is a key element as far as interpretation of a will is concerned.  We, therefore, have to seek the intention of the testator.  The will itself may reveal this or it may be obtained from other circumstantial evidence.  You should note here that getting the intention of the testator is not an easy task.  You should also note that the motive of seeking the intention of the testator must not drive us to interpret the will, if the provisions of the will are clear.

 

B. Interpretation of wills

In Ethiopia, there is no obligation for a will to be drafted or executed by a professional person. It is thus not uncommon for wills to be made without professional advice. ‘Home-made’ wills may use colloquial and unclear language. But even where a will is prepared by a professional, ambiguities and uncertainties can result.

 

Courts, especially the Supreme Court may construe (or interpret) a will. Words in a will, as in any other document, are construed in their context. The essential task of the court is to give effect to the intention of the testator. But this intention is to be deduced from the words used. It is not permissible to re-write the will simply because the court suspects that the testator’s words did not really specify his/her real intentions. In order to understand the language employed by the testator, however, it is possible to ‘sit in his/her armchair’.

 

The general rule is that words must be construed in their usual, or literal, sense. But this is subject to the ‘special vocabulary’ of the testator. And it also must yield to the special circumstances of the testator. Suppose a testator left a legacy to ‘my wife’. He was not lawfully married, but lived with a woman in an irregular union, whom he was accustomed to call ‘wife’. The lady would surely take the legacy, despite the fact that the word ‘wife’ was a misuse of the language.

There are also well-developed ‘canons’ or rules of statutory interpretation, which assist a court in construing laws made by the Parliament. As a general rule, these canons may be applied to the construction of any document, including a will. But, since the ordinary testator is unlikely to have the same drafting skills as a Parliamentary draftsman, the courts must use these canons with more care when they apply them to interpret wills. (See Articles 910 and 911)

 

Legacies by universal title

Sometimes it is difficult to distinguish between universal legacies and singular legacies.  The law itself does not clearly give the meaning these terms.  However, it is believed that the following explanation will shed light on the meanings of these terms.  You may have recognized from your reading of Art 912 (1) the following four aspects of universal legacies.

 

1. When the testator gives his/her whole estate to one person, the property given to the beneficiary is a universal legacy and the beneficiary is a universal legatee. 
2. When the testator gives his/her whole estate to two or more persons, the whole estate given to these persons is a universal legacy and such persons are universal legatees.
3. When the testator gives a portion of his/her estate to one person, such a portion of the hereditary estate is a universal legacy and the beneficiary of the portion of the hereditary estate is a universal legatee.
4. When the testator gives a portion of his/her estate to two or more persons, such portion of the hereditary estate is a universal legacy and the persons appointed to receive such a portion are said to be universal legatees.

 

From the above points one can see that a universal legatee is the one who is called to the succession to receive a certain portion of the hereditary estate, not a particular thing from the succession. Therefore, a universal legatee does not know what thing he/she is going to receive from the succession.

 

Legacies by singular title

What is a singular and legacy and who is a singular legatee? According to Art 912(2), any other disposition (that is, outside the ones discussed above) is a singular legacy.  The general tendency of the law toward singular legacies is that, singular legacies are minor testamentary dispositions usually given to non–relatives.  When a single item, such as a bicycle, a television, an overcoat, a watch, a radio, etc., is given to someone, the property is a singular legacy and the one who is in a position to receive such a property in kind is a singular legatee. A universal legatee, in majority of the cases, does not know what thing he is going to receive before partition of the succession.

 

Fitawrari Anjullo, in his testamentary disposition made the following persons beneficiaries.

1. My elder son Elias shall take 40% of my estate and in addition to the 40%; he shall take my wristwatch.

2. My little daughter Mary shall take 40% of my estate.

3. Let the mule be given to my spiritual father Aba Mathewos.

4. The maidservant who has served me for the past 25 years shall take 2000 Birr.

5. An environmental organization called Green Hill Movement shall take 10% of my hereditary estate.

Elias, Mary and Green Hill Movement are universal legatees since they are allowed to receive the hereditary estate in a certain proportion. Besides, Elias is a singular legatee since he is given a wristwatch in addition to the 40% portion of the hereditary estate. That is, Elias has two capacities in this will. Aba Mathewos, who is to receive a mule, is also a singular legatee. The last singular legatee is the maidservant, who is allowed to receive 2000 Birr.

 

A legacy may be given to the legatee in full ownership or only the bare ownership right may be given to the legatee.  In the latter case, the legatee shall be entitled to use or derive the fruit from the legacy without having the right to alienate (sell or donate) it to third persons.

Legacies and rules of partition

The contents of Art 913 may be difficult to understand. The following example shall clarify the concept in Art 913.

Example Assume that Ato Habtamu made the following will by fulfilling all the legal requirements:  “My elder daughter Ayantu shall take the ISUZU pickup car.” Assume also that this is the whole content of the will of Ato Habtamu. Let us consider that Ato Habtamu has other two children (other than Ayantu). This will does not give to Ayantu the pickup car, in addition to what she partakes with her siblings.  Rather, the will shall be interpreted that the pickup car shall fall in the portion allocated to Ayantu.  The children of Ato Habtamuhave equal portions in the successions as there are no other dispositions in the will.  Other children, since they are universal legatees, do not know what a specific property they are going to receive. Only Ayantuknows that the car falls in her portion. A problem may arise here. That is, the value of the ISUZU car may be greater than other portion of the inheritance. If Ayantu is in need of the pickup car, she can set off the excess amount by paying sums of money to the co–heirs.  For instance, if the total hereditary estate is about Birr 600, 000, including the pickup car, each of the co–heirs is entitled to receive Birr 200,000.  If the value of the car is Birr 225,000, Ayantu should equalize her share with others by paying them back Birr 25,000.

 

You should note here that the testator could give an exclusive right to one of his/her heirs, on a certain property, in addition to what such an heir shares with other co–heirs.  However, if this is the intention of the testator, he/she should express it clearly.

Effects of universal legacies

When a person is in a position to receive a universal legacy, he/she becomes a universal legatee.  The appointment of a universal legatee does not follow any special formality.  That is, a public or holograph will that normally fulfills the formal requirements could appoint a universal legatee.  No special will with special formalities is required to appoint a universal legatee (Art. 914).

When someone is appointed as a universal legatee, he/she is assimilated to an heir–at–law. When it is said that a universal legatee is assimilated to an heir–at–law, it means that a universal legatee who is a non–heir (such as a friend, a servant, a spiritual father, a spouse, etc.) shall be treated in all respects in relation to the succession in the same manner as the legal heirs of the testator.  The rights and responsibilities of such universal legatees will be similar to that of the legal heir to the testator.

Conditional Legacies

The testator may make his succession to depend on certain conditions.  The conditions are of two types. In the words of the Code, they are suspensive and resolutive conditions.  We also call suspensive conditions as condition precedent and resolutive conditions as condition subsequent.

 

Suspensive condition— In the case of suspensive condition or condition precedent, the legatee shall wait until a certain time lapses or until a certain circumstance occurs.  Therefore, the legatee will not be entitled to receive the bequest until the fulfillment of the specified condition.  For example, the testator may order a legacy in favor of Mahlet.  However, Mahlet may be in a position to receive the property upon the expiry of five years and until that time, the property would remain in the hands of specifically designated persons.  The testator may even say that, Mahlet shall receive the property when someone dies.  Hence, the legatee shall be entitled to take the property upon death of that specified person.

 

Resolutive condition— Resolutive condition or condition subsequent is a situation where the legatee brings back what he received from the succession when a certain condition is fulfilled.  That is, in the case of resolutive condition, the legatee is automatically entitled to receive the bequest, unlike the case of suspensive condition.  For instance, the testator may order Brook to receive some property until a certain circumstance occurs. Brook returns the property upon the occurrence of the mentioned circumstance.  For example, the testator may not be happy with the flirting of his daughter with Zelalem. (Zelalem is member of a gang of robbers).  The testator may order a conditional legacy to stop his daughter from marrying such a person.  He may say in his will that, “my daughter shall receive four cows so long as she does not marry Zelalem”.  In this case, the testator’s daughter can enjoy the bequest until she decides to marry Zelalem.  Whenever she marries Zelalem, she shall restitute what she received from the succession.

 

You may have understood from Art 917 that the testator may impose a condition of marrying or not marrying of a specific person.  However, the testator has no right of imposing, in general terms, not marrying or not remarrying.  The testator cannot even impose on the legatee a condition such as not marrying or not remarrying a person who belongs to a certain race, nationality, member of a religious group, etc.

All persons who have attained the marriageable age have a constitutionally guaranteed right to marry and found a family.  The FDRE Constitution in Article 34 (1) states that:

 

“Men and Women without any distinction as to race, nation, nationality or religion, who have attained marriageable age defined by law, have the right to marry and found a  family…”

 

The imposition of marrying or not marrying a specific person does not affect this constitutional right.  Nevertheless, the condition that imposes, in general terms, not to marry or not to remarry infringes the rights of persons. However, the testator may impose a condition of not marrying or not remarrying (See the Amharic version of the Civil Code), by giving to the legatee a usufruct right on a certain property or by giving him/her a certain amount of pension.  The condition of not to marry seems to affect the rights of individuals.  Nevertheless, the condition of not to remarry is usually practiced.  For instance, the testator may order his wife not to remarry by giving her a usufruct right on a certain property or by giving her a pension in the form of annuity or any other appropriate form.

Charges

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

Example The testator may order that Ato Chala would take his (the testator’s) taxicab whose value is 60,000 birr. The testator also orders that Ato Chala shall make a monthly payment to his old mother W/ro Wude 500 Birr. Ato Chala is obliged to make the payment to W/ro Wude up to the extent of the value of the taxicab. In case Ato Chala fails to pay the said amount, W/ro Wude has the right to claim payment. But W/ro Wude cannot demand the dissolution of the legacy made to Ato Chala unless the testator orders this clearly in his/her will.

 

For more details read Civil Code Articles 920 — 923

 

Substitutio vulgaris

Substitutio vulgariswas very common in Roman wills. An alternative heir was appointed in the event that the person instituted as the primary heir failed to become the heir (e.g. because he/she died before the testator or refused the inheritance). According to the Ethiopian Civil Code, Substitutio vulgaris is the situation where the testator orders another person to take the legacy in cases where the appointed universal or singular legatee fails to appear and receive what the testator allocates to him/her. The causes for the disappearance of the appointed legatee could vary from case to case. (See Article 928).

 

Entails

The concept similar to entail existed in Roman law. It was also common in many parts of Europe. It is a restriction of inheritance to a limited class of descendants for at least several generations. It is mainly linked with real estate. The object of entail is to preserve large estates in land from the disintegration that is caused by equal inheritance by all the heirs and by the ordinary right of free alienation (disposal) of property interests. Many changes have been developed regarding entails in the law of successions. In some countries, (E.g. England) the law permits the holder of entailed property (either real or personal) to dispose of it bydeed; otherwise the entail persists. In the United States for the most part entails are either altogether prohibited or limited to a single generation.

 

In Ethiopia, the testator has the power to order that his/her heir and/or his/her legatee shall hand over the legacy to one or more persons after such heir and/or legatee has benefited with the legacy. The testator may order the heir and/or legatee to transfer the legacy (or even portion of it) to the specified person(s) upon the following conditions:

On the expiry of a certain period, for example, after 5 years from the opening of the succession;

Upon the death of the heir or the legatee; and,

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

Entail is not widely practiced in the life of the society. Therefore, instead of discussing it, in detail, the following important points will be provided on the rest of the articles dealing with entail.

Once the legacy is transferred into the hands of the holder entail, the holder entail needs to expect to have only a usufruct right on the legacy. Since he/she is not a true successor, the law does not vest him with powers of an owner of the property. Therefore, the holder entail cannot alienate (sell or donate) the property to third parties. Moreover, the holder should not have any attachment with such property for his/her debts (Art. 931 (1)).

Courts are generally empowered to order the alienation or transfer of a property or its attachment, if such order is justifiable. However, in no case can the court authorize the alienation or attachment of the property in the hands of the holder entail. Because, the holder entail is obliged to utilize the property by taking all the necessary care not to cause a serious damage to the property and finally hand it over to the true successor upon the opening of the substitution (Art 932).

The testator has the right to regulate only until the property is transferred to the person who is called to succeed. Once the property is transferred to the person who is called to succeed the testator loses the right to pass any order concerning the property (Art 934).

In the case where the holder entail refuses to take the legacy or if he/she loses capacity to succeed, for instance, by being unworthy, the person called to succeed shall be called to take the legacy. However, the testator may vary such by an otherwise order (Art 935).

With respect to the contents of Art 936, there is lack of clarity. Moreover, there is a discrepancy between the Amharic and English versions of Art 936(2). Generally, it seems that the law has allowed the holder entail to exercise a full right on the property if it is absolutely clear that the substitution cannot take place.

 

Disherison

In the Ethiopian law of successions, the testator has wider rights to disinherit one or more of his/her heirs by the will he/she makes. His/her rights may even go to the extent of disinheriting all of his/her children. Disherison is an order passed by the testator to exclude his/her heirs from the succession. It usually serves as a means of punishment for the misbehavior of his/her heirs. Some people argue that giving powers to the testator to the extent of disinheriting his/her heirs is not proper. At present time, in many countries the power of the testator to disinherit his/her heirs has been reduced or there are many conditions to be fulfilled to disinherit, especially a child. In many jurisdictions in the US, the powers of the testator to disinherit heirs, including children is still effective. The situation is different in most European jurisdictions. In Ethiopia, the law allows the testator to disinherit one or more of his/her heirs. It seems that the law considered that the testator’s only power as far as punishing disobedient children is disinheriting such children.

 

The testator may disinherit his/her heir either expressly or tacitly. Express disherison is a kind of disherison in which the testator excludes his/her heir from the succession in an explicit manner by stating clearly that he/she has disinherited the heir. The testator may disinherit all of his/her heirs (descendants and other heirs) expressly and appoint a universal legatee.  For instance, Ato Wagaw may disinherit all his children and other heirs and he may appoint his friend Gosaye as a universal legatee.  In such a case, Gosaye is called to receive the whole estate of Ato Wagaw without any contender. If the testator disinherits all his/her heirs and if he/she does not appoint someone as a universal legatee, there shall be no one to take his/her hereditary estate.  In such circumstances, the law has devised a mechanism to enable the descendants of such disinherited heirs to take the property of the testator by way of representation (See Art 937).

 

Descendants can only be disinherited expressly. That is, no descendant may be disinherited tacitly.  Moreover, the testator shall clearly state a justifiable reason why he/she has decided to disinherit his/her descendants. The law makes such imposition on the testator with the view to protect the interest of the descendants in succeeding their ascendants.

 

It is stated above that the testator must give justifiable reason(s) to disinherit one or more of his/her descendants. The law does not list down what things are justifiable and not justifiable. A justifiable reason is a subjective standard.  It is believed that it should impress a reasonable person.  It should be a reason that is sufficient to move the testator to the decision of disinheriting his/her descendant. The testator is expected to attribute some acts of the heir that have dissatisfied him/her. If the acts done by the heir were not illegal and/or not immoral, it would be difficult to the testator to give justifiable reasons.

 

The court has a power to examine and decide whether the reason given by the testator is justifiable or not. Although the court has the power to ascertain whether the reason given is justifiable or not, it cannot ascertain whether the given reason is true or false.  Any statement that the testator gives is a true statement.  Therefore, the heir cannot claim that the statement of the testator is untrue.

 

It is clear that the succession of the testator shall open after he/she is dead.  A dead person cannot express anything and he/she cannot defend himself/herself if someone claims that the statement of the testator is false.  Therefore, it is not possible to pass a decision by hearing only one party.  Because of this, the law simply presumes that any reason given by the testator is a true statement. Moreover, the law trusts parents (or ascendants more than any other persons regarding matters relating to their children (or descendants). Therefore, the law takes for granted what has been stated by the testator as a true statement.

 

When the testator does not make someone beneficiary in his/her will, we say that he/she has tacitly disinherited such a person.  However, this kind of tacit disinheritance does not work against descendant heirs. It works only against the heirs of second, third and fourth relationship. This is a mechanism of protection given by the law to the descendant heirs (See Art 939 (1) & (2)).

 

If the testator appoints someone as a universal legatee to receive the whole property, that does not imply the disherison of the children of the testator. In such a case, the universal legatee is called to succeed the testator as if he/she is one of his children (See Art 939 (3)).

 

Example W/ro Gelane has appointed in her last will Ato Bereket to take her hereditary estate as a whole.  She has two children, Meskerem and Wodessa. She gave nothing to her children. As it is not allowed to tacitly disinherit children, Ato Wodessa cannot take the whole property of the succession. Instead, he would be considered as one of the children of W/ro Gelane and shall partake the property together with them.

 

Disinheriting heirs is a legally recognized power of the testator.  However, if the law considers that the provisions of the will are defective with respect to any matter, and if the heirs impugn the defective provision, then the provision that disinherits the heirs shall be of no effect.  For instance, assume that one of the provisions of a will contains an illicit provision.  If this same will contains a provision that disinherits one or more of the heirs of the testator, only by challenging the illicit provisions, the disinherited heirs can get the invalidation of the disherison.

 

There are three types of wills (See Art 880). All of them are required to be made by following the formal requirements prescribed by the law. Failure to fulfill these formal requirements may cause the invalidation of the will as a whole. The law is so strict as far as fulfillment of the formal requirements is concerned. As it is already indicated above, the testator is not in the position to defend him/her when the will is opened. Even if absolute protection of the intention of testator is not a possibility, the law tries to seal all the possible loopholes which might be created during the making of the will.

A.      Form of wills

I)     Public wills

A public will is a will that is read in the presence of the testator and of four witnesses. The testator can write the will in the presence of the witnesses. He/she can also write the will in the absence any person. That is, the testator may write the will by himself/herself or he/she may get it written by another person under his/her dictation in the presence of witnesses or even in the absence of the latter. The most important thing, as far as a public will is concerned, is the will has to be read in the presence of the testator and of four witnesses. Reading the will in the presence of the testator and of four witnesses is not sufficient. There must be an indication of the fulfillment of this requirement in the will itself. It can be indicated in the following manner:

“...This will is read in the presence of the testator and of four witnesses.”

If the will does not contain such an indication, it could be invalidated. The absence of such indication may cause the invalidation of the will. Therefore, utmost care should be taken when public will is made. Moreover, the testator and the four witnesses should put their signature immediately after the will is read. This is a very strict rule. Assume that one of the witnesses goes out after the completion of the reading but before the will is signed. If he/she comes back after a little while, and when he/she is back, the testator and the three witnesses have already signed the will, the will shall be of no effect and it is subject to invalidation.

A deaf person can take part in a will as a witness if he/she is literate. He/she can read the contents of the will just after it is drawn up. If he/she is unable to read the contents of the will, his/her presence serves no useful purpose as he/she has no mechanism of knowing the contents of the will. Blind people may take part in a will as witnesses so long as they hear when the contents of the will are read. The only thing expected of them is to understand the language in which the will is drawn up.

The law in Art 882 prescribes that the number of witnesses could be reduced to two if one of them is a court registrar, a notary or a judge (See the Amharic version) in his/her official capacity. So a judge, or a notary or a court registrar represents three ordinary witnesses, if such person acts as a witness in his/her official capacity. 

II)    Holograph will

Holograph will is a will that is totally made by the testator himself/herself in the absence of witnesses. Only literate persons may make a holograph will. It is the testator that writes a holograph will totally and if there is an additional word (even if it is a single word) written by the hand of another person, that is a sufficient cause to invalidate the will wholly. The testator must explicitly indicate, in the holograph will, that it is a will. Absence of such an indication is also a ground for the invalidation of the will. As a rule, the testator himself/herself should fully write a holograph will. If it is a handwritten will, it is possible to know for sure that it is written by the testator. Everyone has his/her own style of writing. A machine-written document has no individual style and it is not possible to identify who has written it. Therefore, the law requires a handwritten indication of the fact that the testator writes the will using a machine. The handwritten indication should be included on every page of the will. This is to confirm that the machine written holograph will has been really made by the testator.

Art 886 of the Civil Code advises the testator not to simply reproduce graphic symbols without understanding their meaning.

Someone may write a will using his/her handwriting style.  This may happen without understanding the meaning of what has been written in the document containing the will. For instance, you understand English and Afan Oromo. However, you may not necessarily understand French or Sidama language. But you can copy a document that is written in French or Sidama language, as these languages use the same script (the Latin script). If you do so, it is said that you have reproduced graphic symbols without understanding their meaning. In such circumstances, the one who has produced the graphic symbols is not a real testator. Because such person simply copied a will in a language that he/she does not understand.

With respect to Art 888, the will refers to another document. You cannot understand the provisions of the will without referring to another document.  When the will refers to another document or when it is impossible or difficult to understand the will without referring to another document, such a document must have been written and signed by the testator.

 

Example Assume that the testator had acknowledged his child born outside marriage or he had written a letter to child’s mother recognizing that the child was his.  If the will says, for instance: “I hereby bequeath Birr 25,000 to my child whom I acknowledged or recognized sometime ago”.

 

In such cases, we cannot understand the will, unless we supplement it with the acknowledgement document or letter.  The law under Art 888 requires that such a document or letter should be written and signed by the testator.

III)  Oral will

Oral will is a will made verbally to two witnesses. As you might have understood from Art 892 of the Civil Code, the testator does not make an oral will under normal circumstances.  He/she makes such a will when he/she feels that he/she is going to die within short period of time, particularly after accidents, shocks or similar situations.  It can be said that oral will is not a proper will.  The testator can make only restricted testamentary dispositions through an oral will. That is, the testator cannot make any order of his wish by way of an oral will.  The law has listed down the contents of an oral will. The testator cannot add other testamentary dispositions, which are not included in Art 893.

The law allows the testator to make several wills during his/her lifetime.  This is also the manifestation of his right to make, revoke or alter a will at any time.  The contents of different wills made by the testator may or may not contradict each other. If the provisions of various wills contradict each other and cannot be enforced together the latest will shall prevail. (See Art 895)

Proof of will

It is a commonplace practice that there are lots of controvercies on the validity and existence of proof. The one who claims a right in a will has to prove one or both of the following two things. First, he/she has to prove the existence of the will.  That is, he/she has to show a will made by the testator. Second, he/she has to prove the contents of a will.  In other words, the claimant has to show the fact that he/she is beneficiary of the will. 

From Art 897, one can see the following important points:

$1a)   The existence and contents of a will (whether a public or holograph will) shall be proved only by producing the original will itself or the copy of the original will, certified to be true by the court registrar.  The court registrar could issue the copy of the original will, if he/she had received the original will to be deposited in his/her archives.  Otherwise, the claimant shall only present the original will.

$1b)      To benefit from the will, approval by presenting the will itself is obligatory and no any other means of evidence can be possible.  For example, witnesses cannot prove the contents of a public will.

$1c)   If someone destroys or causes the destruction of a will by his/her fault or negligence, such a person may be obliged to pay compensation to the beneficiary of the will.  To get compensation from the person who has destroyed or caused the destruction of the will by his/her fault or negligence, the beneficiary can prove the fact that he/she is a beneficiary by any means of evidence. For instance, he/she can prove that he/she is beneficiary of the will by producing witnesses.

 

Revocation and lapse of wills

Revocation of wills

A will is always revocable, until the death of the testator. A testator may make an agreement with a beneficiary not to revoke the will. However, sometimes elderly people who have no descendants of their own may promise to leave some property to a person, on condition that the latter nurses the former. This promise cannot be enforced as the will is still able to be revoked.

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

$1a.           By another will.

$1b.                  By an express intention to revoke, made in the same manner as a will, i.e., this must comply with the formalities set out by the law.

$1c.                   By destruction.

$1d.                  By alienation of the thing bequeathed

1. Another will

The testator may, in his will include works like: ‘I hereby revoke all former wills and testaments made by me’. The testator may revoke specific clauses of a will, while leaving the rest of it intact. As has been stated above, a new will usually impliedly revokes a previous will. But sometimes, it may be disputable whether it was the intention to supplement the previous will. This may be the case if the two wills are not inconsistent. The second will may thus operate as a kind of codicil. A codicil is a formal document which varies, but does not revoke, a will.

2. An intention to revoke

A will may be revoked by any other written instrument, provided it is executed with the same formalities as are required for a will. For instance, the testator may revoke wholly or some f the provisons of a previously made will not by a new will but by a document made by following similar formalities. Even if such document is not a will it has a power to revoke a valid will.

3. Destruction

A will may be revoked ‘by the burning, tearing or otherwise destroying . . . with the intention of revoking the same’. Some formal act of destruction seems to be necessary, although the whole of the will need not be destroyed. Merely throwing the will in a waste-paper basket is not sufficient, even if the testator indicates to a third person that he/she considers it to be an act of revocation.

$1d)  Alienation of the thing bequeathed

By alienating the thing bequeathed, the testator can revoke the will he/she has made.  For instance, in his/her will made last year, assume he/she gave a mule to his/her friend.  Now, if the testator sells or donates the mule to some other person, it means that he/she has revoked his/her will. You must note here that the thing bequeathed may come back to the possession of the testator at a later date. However, that does not cause the revival of the will which was already revoked. (See Art 900)

Lapse of wills

As discussed above, it is the testator by his/her wish who revokes the will he/she has made. Lapse of will takes place by the operation of the law. There are a number of reasons for the revocation of a will by the operation of the law. The reasons depend on the type of the will.  Therefore, various types of wills have various reasons for their lapse.

Failure to deposit a holograph will

According to Art 903 of the Civil Code, a holograph will shall lapse where it is not deposited with a notary or in a court registry within seven years since it has been made.  No such imposition exists for a public will.

Birth of child

Another reason for the lapse of a will is birth of a child.  If a child is born after a will is made (whether a public or a holograph will) such a will, shall lapse if the newly born child accepts the succession.

From Art 905 of the Civil Code, you may observe the following points:

Although the law provides that the will shall lapse if a child is born to the testator after making such a will, there is a situation where such will could be maintained totally or partially by the court.  The court may maintain the will irrespective of the birth of the child, if it had been of the opinion that the testator would have maintained the will despite the birth of the child.  For instance, if the testator made a will while his wife was expecting a child, it would be clear that the testator had intended to maintain the legacies ordered in the provisions of the will even if a child was going to be born to him.  A discretionary power is given to the court as to the maintaining of the will as total or partial.  The court may arrive at a decision on this matter after having seen the prevailing circumstances.

When the will, which the testator makes before the birth of the child, is active either wholly or partially, the newly born child should receive, at least, three–fourths of the share he would receive in the intestate succession.  That is, 75% of the value which he would be entitled in the intestate succession.

Dissolution of marriage

According to Article 906 of the Civil Code, legacies made in favor of a spouse of the testator shall lapse where the marriage of the testator with that spouse is dissolved through divorce or court order when the marriage is concluded without observing the conditions for the validity of marriage.  However, such a legacy cannot lapse where the marriage is dissolved by death.

When a husband or a wife makes a will to the benefit of his/her spouse, it is believed that the testator has made the will with the expectation taht the marriage would continue until his/her death.  Therefore, the testator may give a considerable amount of personal property to his/her spouse with the expectation that the marriage would persist. If the marriage dissolves through divorce, the reason that has caused the making of the will to the benefit of the spouse is already lost.  Unless such a will lapses, it may seriously affect the interests of the relatives of the testator.

Death, unworthiness, or renunciation by a legatee

Art 907 lays down the rule of lapse of legacies.  According to Art 907, three factors cause the lapse of legacies.

When the legatee dies before the testator.  In this case, the legatee has no capacity to succeed the testator since he does not fulfill the requirement of survivorship.

When the legatee cannot succeed the testator.  This has a relation with unworthiness.  When a legatee is condemned as unworthy, anything destined to his benefit shall lapse.

When the legatee does not want to take the legacy.  This has something to do with the renunciation of the legatee to the succession of the testator.  The law passes the legacy when anyone renounces the succession of the testator, as it does not consider him as the legatee of the testator.

Although we say that the legacy shall lapse where the legatee dies before the testator, there is a possibility that representation could take place.  As you remember from your previous studies, only children or descendants of a person can represent him/her.  According to Art 908(a), the legatee who died before the testator would be represented if he/she is a legatee by universal title (or a universal legatee). 

There is a very narrow chance for the existence of representation in the case where the legatee is a legatee by singular title (or a singular legatee).  According to Art 908 (b), where the singular legatee dies before the testator, the descendants of the singular legatee shall represent him only when the legacy destined to such singular legatee devolves upon the state as a result of failure of the singular legatee to receive the legacy. According to the rules of intestate succession, the hereditary estate shall devolve upon the state when relatives up to fourth relationship do not survive the deceased. In the above situation, the rules of the intestate succession shall regulate the singular legacy, because of the prior death of the singular legatee.  If a relative survived the testator (from the nearest relative ᅳ a child — up to a far apart relative at the fourth relationship), such a relative would receive the legacy.  In the absence of any relative up to the fourth relationship, the legacy shall devolve upon the state.  Instead of devolving the property upon the state, the law favors the representatives of the predeceased legatee to inherit the deceased by way of representation.

 

A will is the most satisfactory means of arranging for the devolution of a person’s property after death. In Ethiopia many people do not make wills even if there is no comprehensive data on the percentage of wills and intestate successions. While making a will, the testator makes a disposition of his/her property through a unilateral declaration of intention which does not require receipt by another party to become complete. The valid execution of a will requires that the testator possessed testamentary capacity at the time of execution and that the formal legal requirements were observed. For the most part, the testator is free to make his/her own arrangements. The only requirement is that the instructions in the will not contravene legal prohibitions or public policy.  A will is a juridical act that shall have a legal effect after the death of the testator or the will maker. It is an instrument by which a person makes a disposition of his/her property to take effect after his/her deceased, and which in its nature is ambulatory and revocable during his/her lifetime. A will is the instrument, which expresses the last wish of the testator. Some people say that a will remains only a draft during the testator's life, indicating its ambulatory nature.

There are different kinds of wills made by fulfilling the formal requirements that the law prescribes. The law is very strict with respect to the formality of making a will. A will that does not satisfy the required formalities is invalid by the court of law. Testamentary dispositions (wills) are declarations of intention. Thus, pursuant to the general provisions of the Civil Code, they can be invalidated or become ineffective.

It is believed that the Ethiopian society does not know much about the features of will and how to fulfill the formal requirements. This can be observed from the wills that are totally or partially invalidated by the courts due to failure to fulfill the formal requirements.

Will is different from donation in that donation is a contract whereby a person, the donor, gives some of his property or assumes an obligation with the intention of gratifying another person, the donee. Will is a unilateral juridical act which is different from contract, in which the latter needs at least two parties. Since donation is a contract, it needs the acceptance by the donee. The most significant difference, however, between donation and will is the time in which they are effected. Donation shall take place while both the donor and the donee are alive. As it has bees discussed above, will is ambulatory and hence becomes effective after death of the testator. Some similarities also exist between will and donation.

 

Conditions for the validity of wills

The conditions prescribed by the law must be satisfied to make a will a valid document. The will becomes effective after its maker has died. The testator is not in a position to express his/her wish while the will is effective. Because of this, the law has opted to enumerate very stringent conditions and formal requirements for the validity of wills. Failure to observe these conditions set by the law would render the will ineffective. Because courts do not hesitate to invalidate a will if they feel that the will has not complied with the required conditions. A will is the only evidence for the expression of the true intention of the testator. To serve this important purpose, it needs to fulfill all the necessary conditions for its validity. The following sub-titles are some of the conditions. 

Personal nature of a will

The testator should seek the assistance of no one else. He/she should make the will by himself/herself. No any other person may take part in the making of a will on behalf of the testator or by way of assisting him/her. Nor the testator could appoint another person to represent him/her as far as making, modifying or revoking a will is concerned. Except for will and other specifically stipulated juridical acts, another person may represent the testator. The following definition illustrates well this condition.

Art. 2199 — Definition

Agency is a contract whereby a person, the agent, agrees with another person, the principal, to represent him and to perform on his behalf one or several legally binding acts.

Example Abebe may authorize, by a contract of agency, Beletu to perform some juridical acts on his behalf. Based on this contract of agency, Beletu may administer the Abebe’sproperty, or she may be authorized to sell the property.  However, Abebe cannot in any case authorize Beletu to make a will on his behalf. Moreover, Beletu cannot alter a will made by Abebe nor can she revoke any will of Abebe.

The testator is not in a position to express his/her true wishes after his/her death. If someone is allowed to make a will on behalf of the testator, he/she can take advantage against the true intention of the testator very easily. For instance, Ayele, an indecent child of Ato Bekele may make a false will in the name of his father upon the death of Ato Bekele or even before his death. To narrow the occurrence of such situations the law lays down very strict formalities to make a will.

Another scenario of the personal nature of wills is the one stipulated in Article 858. According to Article 858 of the Civil Code, no two persons may make a will together using the same document. The law believes that the testator cannot express his/her free intention when he/she makes a joint will. That is, if the testator makes a joint will, such will could influence his/her free intention to some extent. A will is an instrument that the testator can repeatedly alter or revoke during his/her lifetime. It would be difficult for the testator to alter and revoke a will if he/she makes a will together with another person.  This would definitely affect his/her freedom in making, altering and revoking a will. In some other jurisdictions, a will made by spouses jointly is valid. In Ethiopia, even spouses cannot make a will together irrespective of the fact that they have community of property in marriage.

A person may not bind himself/herself to make, to modify or to revoke a will to the advantage or disadvantage of any other person. That is, he/she cannot promise to make a will to the benefit of a relative, a friend or any other person. In addition, he/she cannot promise to make, modify or revoke a will to the disadvantage of any person. When it is said that the will maker cannot promise, it should not be taken in a sense that if he/she promises to make, modify or revoke a will, the testator may not be bound by such a promise. That is, notwithstanding the promise made, the testator can revoke the will at any time. See Art 859(2).

Capacity to make a will

Testamentary capacity is a special form of legal capacity. According to the Revised Family Code, testamentary capacity commences upon the completion of the 16th year. Prior to this, the minor cannot make a will even with the consent of his/her legal representative. After the age of testamentary capacity has been reached, the minor does not require the consent of his/her legal representative. Persons lacking testamentary capacity are those who, due to a state of mental disturbance, mental deficiency or unsound mind, are unable to understand the meaning of the declaration of intention they have made or to act in accordance with this understanding in the execution of a will.

Minors

A Minor is a person of either sex who has not attained the full age of eighteen years. According to the Revised Family Code of the Federal Government and that of Regional States, a minor can make a will once he/she attains the age of 16 years. The following Art is taken from the Federal Government’s Revised Family Code.

Art. 295 — Will.

$11.           The tutor may not make a will on behalf of the minor.

$12.                  A minor may not make a will before he attains the age of sixteen years.

$13.           The will made before he has attained such age shall be of no effect, notwithstanding that the minor has not revoked it after having attained the age of sixteen years.   

Even if the minor does not revoke a will, he/she made before the age of 16, after he/she has attained 16 years that cannot be a reason to maintain such a will.

Judicially interdicted persons

Judicially interdicted persons are those who are declared by a court of law not to perform juridical acts, such as making a will. One of the reasons for a judicial interdiction is a mental illness. You must derive the following important points from the reading of Arts 861, 368 and 862.

1.                An interdicted person may not make a will after his interdiction.
2.                A will made by the interdicted person before his interdiction is valid.
3.             Although the will made by an interdicted person before his interdiction is valid, the court has the power to invalidate such will either totally or partially.
4.             Although the will made by an interdicted person after his interdiction, is invalid, the court has the power to maintain such will either totally or partially.
5.           When the court maintains a will made by the interdicted person after he/she is being interdicted, it shall consider the following points:

                      i. A legacy (money or property given to somebody through a  will) must not exceed five thousands Birr and;

                  ii. The heirs-at-law of the interdicted person (the heirs- at–law could be descendants or other relatives)should get a minimum of three-fourths of the succession. That is, the outsiders (non-relatives) can   take a maximum of only one-fourth of the succession.

Generally, the law considers that the person is healthy before his/her interdiction and his/her mental conditions will affect his/her will when the law takes such actions after his interdiction. In an actual situation, this may not always hold true.

Example Consider that the court has interdicted Alemu on Meskerem 30th, 1999 E. C. Even if it is considered that his will made before this date is valid, his mental conditions during such period may be worse than the actual date of interdiction. Similarly, although a will made after the interdiction is not valid, the health conditions of the interdicted person may have improved and such conditions may lead the court either to maintain or only partially invalidate the will.

Insanity

As indicated in Art. 863, a will made by an insane person is valid unless it is proved that the person was a notoriously insane person at the time of making the will. There are scarce conditions in Ethiopia that make a person notoriously insane. (Remember your Law of Persons course) Therefore, getting a judicial interdiction of an insane person is a wise step to make the will made by such person ineffective.

When a testator makes a will, he/she must be careful not to include provisions that are contrary to law or morality. Moreover, the provisions of the will must not be difficult or impossible to execute.

Provisions Difficult or Impossible to Execute

Article 865 (1) tells us that a testamentary provision which fails to specify in a sufficiently clear manner its beneficiary or its object shall be of no effect. From this it is clear that the provisions of a will must clearly indicate who will be the beneficiary and what things or portion of things has been allocated to such beneficiary.

Example In her will W/ro Kebebush expressed that: “Let somebody take my laptop computer.” It is impossible to determine who is that somebody. Therefore, the testator must clearly indicate the beneficiary of his/her will. Moreover, the testator needs to clearly indicate the beneficiary of his will. The word “object” refers to a property under the will. Hence, the testator should specify the property that he bequeathed to the beneficiary. If the testator says, “Let Ayele receive my something” in his/her will, it is also impossible to execute this will correctly. What thing should Ayele receive is not clear.

There is a similar problem in sub-art (2). In this case, the provision of a will is impossible or very difficult to execute or put it in practice. That is, if a provision of a will contains orders of the testator which cannot be put into action, such provisions shall be invalidated.  For instance, Ato Ayalew, in his will, gave the building of the Ministry of Education to his friend Lemma. It is not possible to execute this will, as the building of the Ministry of Education is a public property, not an individual’s asset. The testator can give by way of will property which belongs to him/her at the time of his/her death.

Illicit Provisions

In Art 866 the word “object” is to mean the aim, purpose or goal of the will. If the purpose of the will is unlawful, its provision shall be of no legal effect. Moreover, the provisions of a will shall be of no effect if their purpose or aim is immoral. However, there is no standardized immorality. Something immoral in a certain area may not necessarily be immoral at another area. Hence, the judgment on immorality could be left to local conditions.

Example Colonel Wubshet made the following testamentary disposition: My son Hailu married a woman who is a member of a political organization that I do not like. Although I insisted that he divorce that woman, he refused to obey my orders. If anyone, from among my family, causes the separation of my son from his wife, I bequeath him 10,000 Birr.

This will may be considered as immoral one. Because, marriage is a very respected social institution. Its dissolution must be initiated by the spouses themselves and by no one else. It is not proper to initiate the dissolution of someone’s marriage and it is this conditions that makes the will immoral. Moreover, Colonel Wubshet’s daughter-in-law has exercised one of her constitutionally guaranteed rights, as anyone has the right to be a member of his own will in a political organization… (See Art 38(2) of the FDRE Constitution)

Violence

The testator has to make a will only by his/her free volition. That is, the testator should not make a will under a threat or under any condition that could affect his/her freedom in the making of a will. Violence vitiates the freedom of making, modifying and revoking a will. The violence may not necessarily be directed toward the testator. It may happen against one of the testator's descendants, ascendants or against the testator's spouse. In this case, the violence or the duress may put under threat the life, honor or property of the testator or one of the above persons. Articles 1706-1709 and 1808-1818 are the provisions of the general contracts and they shall apply by analogy to treat the cases of violence with respect to making, modifying and revoking a will.

Undue influence

According to the Ethiopian law of succession, undue influence is not a ground to invalidate a will. This is the rule. Undue influence is more of psychological than physical. Someone may exert an excessive influence on the testator to have a will made, modified or revoked to the benefit of oneself. Although such influence affects the mind of the testator, it is not considered as a serious threat. However, there are exceptional circumstances in which undue influence could be a ground to invalidate a will or reduce the amount indicated in the will. Especially, the exceptional circumstance is relevant when the one who exerts the undue influence has a special opportunity to exert pressure on the testator. Generally, the exceptional situations depend on two circumstances:

a)  On the conditions of the testator; and,

b)  On the identity of the person who exerts the undue influence on the testator.

The conditions of the testator put him in a weak position in that he/she needs the help or assistance of other persons. The conditions that force him to seek the assistance of other persons could be his being a minor, sick, etc.

The identity of the person who is exerting the undue influence is the one who, by taking the advantage of the conditions of the testator, gets benefit from the will of the testator. This person could be the guardian or tutor of a minor testator, or he/she could be a physician who prescribes or applies a medical treatment to the testator or he/she could be a clergyman who prays for the testator or gives him a spiritual assistance.  A person, who takes part in the making of the will as a witness, interpreter, etc., can effectively exert undue influence on the testator and this situation is an exceptional one.

According to Art 869 of the Civil Code, if a minor testator makes a will to the benefit of his/her guardian or tutor, the court may totally invalidate the will (the testamentary provision in relation to the undue influence) or may reduce the amount given to such guardian or tutor. A guardian or a tutor has a big opportunity to exert influence on a minor testator and get a benefit unduly. But this provision shall not be effective if the guardian or tutor is an ascendant of the testator.

Likewise, the court may reduce the amount given to the beneficiary or invalidate the testamentary provision when the beneficiary is a physician who has given a medical treatment has exerted undue influence on the testator. For the purpose of applying the provisions of undue influence, it does not matter whether the physician is a professional or even he/she is a quack. Clergymen are persons who can easily influence the person who is, e.g., sick and needs prayer so that his/her soul would rest in the heavens. So the court may either reduce the amount given to such persons or invalidate the testamentary provision to the benefit of such persons.  Irrespective of the undue influence exerted on the testator, if the one who has exerted the undue influence is a relative by consanguinity of by affinity to the testator or if such person is the spouse of the testator, the will which is made to the benefit of the one who exerted the influence shall not be affected, that is, it becomes effective. (Read Arts 870 and also 871—876)

Fraud

Fraud is a deceitful act. However, it is not a ground to invalidate a will, if the will benefits the fraudster (the person who commits fraud). Here you should distinguish between fraud and undue influence. In the case of undue influence, the testator seeks others' help. In the case of fraud, the testator may not necessarily be in a weak position. For instance, the fraudster may promise to do something to the testator, if the testator makes a will to the benefit of such a fraudster. The fraudster may have no ability or capacity to perform his/her promise. Although the promise of the fraudster deceives the testator, it is not possible to invalidate the will that benefits the fraudster. Another example could be — a man who is tied by the bond of a marriage may tell to a woman that he is a widower and married her on that ground. If the woman makes a will to the benefit of the man hoping that the man is only her husband, this may not be a ground to invalidate a will. But as we will see under section Revocation and Lapse of Wills below, a will made to a spouse shall lapse if the marriage is dissolved by way of divorce.

Error

When a will is made as a result of error, the provisions of the Civil Code relating to invalidation of contracts shall apply. (Refer to the Civil Code provisions (Arts 1697 — 1705 and 1808 — 1818)) Generally, the mistake which led the testator to make the will in such a manner must be fundamental. That is, it is not logical to invalidate a will for every trivial or minor error. The error must be of a kind that, had the testator known the truth, he/she would not have made a will in such a manner. Moreover, the mistake must be clear from the wording of the will itself or from another document to which the will refers. The following example will illustrate this statement.

Only one or two of provisions of a will might have been affected by error and others may be good. The court may invalidate only such defective provisions by leaving others to be effective. The nullity of a certain defective provision cannot cause the nullity of other provisions of the will, unless there is a necessary connection between the execution of the provision, which has to be nullified, and the execution of another provision.  (Art 878)

The testator may make a legacy to depend on a certain condition. This means, the testator may impose certain condition or burden on the beneficiary of the succession. The beneficiary will receive the legacy when he/she accomplishes the burden or the condition imposed upon him by the testator. However, the law does not bind the beneficiary or the legatee to accomplish the burden if the condition is impossible to perform or it is illegal or immoral. That is, if there is an imposition of impossible, illegal or immoral condition or burden, the legatee can receive what is prescribed by the will to him/her without accomplishing what the testator ordered.

Example The testator in his will disposes that the beneficiary of the will shall fly from the tip Mount Ras Dashen to the tip of Mount Tulu Walel without using any device. If the beneficiary accomplishes this task successfully, the testator wishes to give him a new car. This condition is impossible to accomplish. Therefore, the legatee can receive the new car without even trying the flight.