12 July 2013 Written by  Mellese Damtie and Solomon Kikre

INTESTATE SUCCESSIONS

 

In Ethiopia, most of the successions are intestate. When the deceased leaves no will at all or a court for various reasons invalidates the will made by him, it is said that the succession is intestate. In such a case, the distribution of the estate will be in accordance with the operation of the law rather than the volition of the deceased. In the intestate succession, the law follows “the presumed will of the deceased.” This type of succession is older and more historic than succession by will. (Read Articles 842 — 848 of the Civil Code)

Devolution according to the degree of relativity

The provisions of intestate succession are based on the idea that — had the deceased made a will he/she would have distributed his/her estate by following the degree of relationship. That is, he/she would give his/her estate to his/her closest relatives in the first place. In the second place, relatives who are situated at a relatively distant position when compared with the relatives of the first degree shall succeed the deceased. Accordingly, the law considers the children of a person are his/her closest relatives.

$1A.  First relationship

Children or other descendants are number one candidates to succeed a person (See Art. 842(1)). All children of the person who died intestate have equal rights in the succession irrespective of their age, sex, etc. differences. If one of the children of the deceased is a predeceased child, that is, if he/she died before the death of the deceased, he/she would lose his/her capacity to succeed, as discussed above. The reason is he did not fulfill one important requirement, which is surviving the deceased. Although a predeceased heir lost his/her capacity to succeed the deceased, his/her own descendants will represent him. Therefore, representation could be taken as an exception to the rule of survivorship.

A person who claims to have a right in a succession is expected to be alive at the time of death of the deceased. This is the requirement of survivorship. The idea is that an heir who did not survive the deceased should lose his/her right in the succession. That is, a predeceased heir has lost his/her capacity. However, his/her descendants, with the exclusion of all other heirs, shall represent a predeceased heir. As a rule a predeceased heir has no capacity to succeed the deceased. But his/her descendants can represent him/her. This situation makes representation an exceptional circumstance to the general rule.

$1B.  Second relationship

If the deceased is not survived by his/her children or other descendants, the father and the mother of the deceased will be called to his/her succession. In the case where his/her descendants survive him/her, all other heirs of the deceased will be excluded from the succession according to the rules of the interstate succession. His/her father and his/her mother are in the second order in the queue of the relatives of the deceased. The father and mother of the deceased will take equal share of the whole estate of the deceased.

In the case where one of the parents has died before the deceased, such parent shall be represented by his/her children (or other descendants). Note that the children (first degree descendants) of the parents of the deceased are his/her brothers and sisters, of full or of half blood.

In the case where both parents have survived the deceased, half of the hereditary estate of the deceased goes to the father and the other half goes to the mother. This is based on the principle that heirs of the paternal line the maternal line shall have equal shares in the inheritance of the deceased, so long as they are at equal distance from the deceased. In the paternal line, we find the father of the deceased and his (the father’s) descendants. In the maternal line, we get the mother of the deceased and her descendants.

In a situation where the father predeceased the deceased and where descendants do not survive him, there is nobody to take the estate of the deceased in the paternal line at that level. In this case, the heirs of the maternal line take the whole estate of the deceased.

$1C.  Third relationship

A person has four grandparents, two on the paternal line and two on the maternal line. If the deceased is survived by all of the four grandparents, half of the hereditary estate shall be devolved on the paternal grandparents and the rest half will go to the maternal grandparents. Each of them shall be entitled to one-fourth of the hereditary estate. If one of them predeceased the deceased and is survived by descendants, he/she will be represented by such descendants.

If a predeceased grandparent is not survived by descendants, his/her portion shall devolve upon the other grandparent of the same line. For instance, if the paternal grandfather predeceased the deceased and if he is not survived by descendants, the property that was destined to him or to his representatives will now be transferred to the paternal grandmother. In this circumstance, the maternal grandmother, instead of taking only one-fourth of the hereditary estate, she is entitled to receive half of the hereditary estate (if she is alive). If this paternal grandmother also predeceased the deceased, her own descendants will represent her. If her descendants do not survive her, there is nobody to receive the property on the paternal line of third relationship. Therefore, the whole hereditary estate will devolve upon the maternal grandparents. There are two maternal grandparents and each of them will be entitled to receive half of the hereditary estate.

$1D.Fourth relationship

A person has eight great-grandparents, four on the paternal line and the other four on the maternal line. The distribution of the estate follows the same pattern as that of the case of parents and grandparents.

Paterna paternis-materna maternis

Articles 842 to 848 describe the rule in which intestate succession is governed.  That is, the closest relative of the deceased would succeed him/her. This rule has an exception. The exception is — although there are closer relatives of the deceased, a certain property may devolve upon far distant relatives. The law calls this exception as paterna paternis materna maternis.

The exceptional rule of paterna paternis materna maternis is designed to allocate an immovable property that is obtained by the deceased from one of the lines by way of donation or succession to the heirs of the line from which the property is obtained. For a better understanding, study the following example.

You might have understood from the reading of Art. 850, that the heir who is the closer relative of the deceased and should have succeeded the deceased, but lost his right as a result of paterna paternis materna maternis, will have a usufruct right on the immovable. A usufruct right is a right to use a property or to derive a fruit from that property. For instance, if the property is a house, a person with a usufruct right can either live in the house (a use right) or he/she can rent the house and collect the rental money (deriving fruit of the house). Hence, a person with a usufruct right cannot sell the house nor can he transfer it by donation. Therefore, Wro Haymi will have a usufruct right and she is not obliged to pay any compensation to heirs of the paternal line from which the immovable (house) is obtained (See Art. 850 (2)).

According to Art 851, to apply the rule paterna paternis materna maternis, there has to be an heir in the line from which the immovable property is obtained, if the immovable property is obtained. If the immovable property is acquired from the paternal line, there has to be an heir in that line.  In case of absence of any heir in the paternal line, the immovable property shall devolve upon the maternal line. The converse is also true.

To apply the rule paterna paternis materna maternis, the following five conditions must all exist together. If one of them is missing, it cannot be applicable. The five conditions are:

$11.                  The deceased must die intestate. (The exceptional rule cannot be applied if there is a will)

$12.                  His/her own descendants must not survive the deceased. (If there are descendants, Art. 842 shall apply)

$13.                  The property must be an immovable one. (Art. 849 (1) & (2))

$14.                  The property must be acquired by the deceased from either paternal or maternal lines by way of succession or donation. (Art. 849 (1) & (2))

$15.                  There must be an heir in the line from which the property has originated. (Art. 851)

Escheat

When there are no heirs of the deceased up to the 4th relationship, the property shall devolve on the State. This condition is usually said to be Escheat. Escheat is reversion of property to the state in the absence of legal heirs or claimants. The State takes the property of the deceased not by way of succession, but because such property has no one to claim it. Property which is bona vacantia (ownerless or vacant property) belongs to the State and it is via this principle that the Government is taking the property of the deceased that has no heir up to the 4th relationship. (See Article 852)

Representation and renunciation

A.    Representation

It can be said that there two modes of succession, succeeding directly and succeeding through representation. Heirs who are closest to the deceased are called to succeed directly and personally. However, the persons who are to be called to succeed directly and personally might have died before the opening of the succession, by leaving descendants behind them. In such a case, the law allows such descendants to be called to the succession. Representation is an exception to the requirement of surviving the deceased. As a rule, the heir must survive the deceased. But this rule is excepted by representation. According to this exceptional rule of representation, the descendants of a predeceased heir can take part in the succession by taking the foot of the predeceased heir. When representation is effected it is per stripes, not per capita. That is, the descendants of the predeceased heir shall take what would be taken by the predeceased heir, had he/she been alive.

Example

Ayantu died intestate and she left 90,000 Birr as a hereditary estate. She had three children, Brook, Ezana andMetti. Brookpredeceased Ayantu. Brook himself was survived by three children; Meron, Akalu and Mike. As Brook is survived by descendants, he shall be represented by them. Brook’s children would receive what would have been taken by Brook.  That is, they shall be entitled to 30,000 Birr and each of them has an equal share in the succession. Ayantu’s grandchildren will only take proportionately among themselves the share that their deceased parent (Brook) would have taken if he were alive. This is a per stripes representation. 

B.  Renunciation

An heir who is a successor may not necessarily be willing to participate in the succession. In such a case, he could renounce the succession. Renunciation is a refusal to accept the succession. A person may renounce the succession for various reasons. If he/she is relatively in a better economic position, he may renounce the succession to the benefit of his co-heirs. The heir who has renounced the succession shall never be seen as the heir of the deceased. He/she has forfeited his/her right in the succession and hence he/she will not be represented by his/her descendants. The reason is the one who has no right in the succession shall not transfer to his/her descendants what he/she does not have. However, as it is prescribed in Art. 854(2), the person whose succession has been renounced may be represented.  For better understanding of this provision, read the example below.

Example

Zemzem’s mother W/ro Wude is a very rich woman. Zemzem has a daughter called Tenaye. Assume that Zemzem died onMeskerem 14th of 1999 E.C. Tenaye renounced Zemzem’s succession. Just a year after the death of Zemenay, W/ro Wude died. Now Tenaye can succeed W/ro Wude by representing her mother Zemzem.             

Wude

(Grandmother)

 
   

Zemzem

(Mother)    

 
   

Tenaye

(Daughter)

(Tenaye renounced Zemzem’s succession)

With the same logic as renunciation, the heir who is declared unworthy cannot be represented by his/her descendants, as such heir has already lost his/her right to succeed the deceased, he/she has nothing to transfer to his/her descendants. To succeed the deceased through representation, there has to be bond of legal relationship between the deceased and the one who claims to succeed the deceased. (See Arts 855 & 856) For instance, assume that Ato Omod adopts a child by name Neguse. Omod’s father Ujulu opposed the adoption made by his son. Negusu cannot succeed Ujulu by representing his adoptive father, Omod. 

Last modified on Friday, 12 July 2013 12:35