12 July 2013 Written by  Mellese Damtie and Solomon Kikre

Capacity to Succeed

 

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

A.   The Condition of Survivorship

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

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

B.   Commorients 

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

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

Art. 832. — Persons dying simultaneously

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

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

Example

Wro. Sania and her son Shemsu are living together in the same house. One night their house was inundated and they were taken by the flood. Their bodies were discovered seven days from the date where they were taken by the flood. Determine which person shall succeed the other!

It is not known which of these persons died first. It is simply presumed that they died simultaneously. Therefore, they cannot succeed each other.

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

C.   Death of Heir

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

Example

Ayele and Alemitu have lived in marriage for about two decades. They have three children namely; Tsegaye, Genet and Lombesso. The elder son Tsegaye died a week after death of Ato Ayele. In this case Tsegaye died after getting the rights to succeed his father Ayele. Tsegaye died after securing a right to succeed his father’s inheritance.  As Tsegaye is dead now, his heirs will take his portion from the succession of Ayele.  By assuming Tsegaye has no descendants, his mother, Alemitu will take what should accrue to Tsegaye.

$1D.   Unworthiness

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

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

$1o   The deceased himself,

$1o   The deceased’s descendant, 

$1o   The deceased’s ascendant or

$1o   The deceased’s spouse. 

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

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

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

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

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

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

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

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

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

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

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

E.   Unborn child

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

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

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

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

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

G.  Sex, age and nationality of heir

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

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

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

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

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

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

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

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

Last modified on Friday, 12 July 2013 12:22