12 July 2013 Written by  Mellese Damtie and Solomon Kikre

Contents and interpretation of wills

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.

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