12 July 2013 Written by  Mellese Damtie and Solomon Kikre

The Concept of Patrimony

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.  

 

Example

Ato Markos has his business in Jimma town. After he encountered a severe illness, he went to Addis Ababa for treatment. If Ato Markos died in Addis Ababa, even if his place of death is Addis Ababa, his succession shall open at Jimma. 

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.

Example

Wro. Semira was employee in the National Bank of Ethiopia. She was head of one of the departments. Upon death of Wro. Semira, her successors cannot claim employment at the national Bank, as such rights which are specific to individuals cannot be transferred to heirs of the deceased.

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.

Example

Assume Wro. Genet has bought a life insurance policy from the Ethiopian Insurance Corporation.  The money to be collected from the insurer may or may not form part of the inheritance of Wro. Genet. The following conditions are important to make the insurance money to constitute the inheritance.

A)  If she designates no beneficiary at all. In this case, she simply pays the premiums for the life insurance to the insurance company without indicating any beneficiary.

B)  If she concludes the contract of life insurance to the benefit of her heirs without any other indication.

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

Last modified on Friday, 12 July 2013 12:15
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