Chapter three: Part IV

By
Zerihun Yitayew(LLB, LLM)
 Previously on Law of succession
 In our previous class we have discussed:-
 Possibility of more than one will
 Proof of will
 For execution- by producing original or a certified copy of will
 For claim of damage- by any means
Revocation of wills- result of some act by the testator
- express general and special revocation
 Implied revocation- contradictory will
 Distraction, cancelation, burning, tearing
 By alienation of the thing bequeathed
 Cont..

Lapse of WILL: operation of law

 Lapse of Oral will (art. 902), if not died within three
 Failure to deposit a holograph will (art. 903)

Birth of child (art. 904&905)

 Dissolution of marriage (art. 906)
 Survivorship , unworthiness, or renunciation by a
legatee (art. 907)
 In today’s session
 In todays session discussion will be made regarding:
The Contents of will and
Interpretation of provisions of will
 Content of Will

According to Art 909 of the Civil Code,

 Dispose his properties by By appointing a legatee by universal title, or By order of a legacy by
singular title
 A testator may disinherit one or more of his legal heirs by his will.
 He can constitute endowments, or trustees,
 Appoint a guardian to his minor children.
 He may give a direction as to his funeral.
 He may also do other juridical acts that the law acknowledges to have a juridical effect after his
death.
 The testator can also make his will conditional
 Dispositions providing for arbitration. (Art. 941. )
 Legacy by Universal Title

A legacy by universal title is defined by Art912 (1) of the Civil Code.

Pursuant to this provision legacy by universal title is a testamentary
disposition whereby a person calls one or more persons to receive the full
or bare owner-ship of one whole or the portion of his property .
According to this definition a legacy by universal title;
I. First is a testamentary disposition of property.
II. Secondly, this disposition should entitle the beneficiary the full or bare
ownership of property.
 Cont..

Full ownership according to this provision includes the three basic rights over the
property. That is the power to use (usus ), to collect the fruit (Fructus) and to dispose
(abusus).
Bare ownership, on the other hand, is ownership right that has only the power to dispose
but has no power to use and to collect the fruits.
 III. Thirdly, the full or bare ownership should refer to the whole or portion of testator’s
property.
 This means, a person who has an intention to assign a legacy by universal title, should
call his beneficiaries to receive the full or bare ownership of the totality of his patrimony
or part of his property.
 Con..

The testator must use words like, the whole of my property, half of my property, one
third of my property, X % OF my property and the like.
The testator who wants to make a legacy by universal title should not mention the name
of an identified object of the deposition.
When the disposition made by the will of the deceased is a legacy by universal title the
reference should not be a single identifiable property.
The reference should be made to the entire testator’s property or to that of a part
forming the entirety.
This in effect means the share and the object of legacy made by universal title may be
not known before the liquidation of succession.
 Universal legatee = legal heirs

A legatee appointed by universal title is assimilated to the heirs of the testator for all practical
purpose. According to Art.915 (1) of the civil code, a legatee appointed by universal title is
considered as one of the heirs of the testator unless the testator stipulates to the contrary in his will.
This in effect means that;
 He may be entitled to the whole property in the absence of legal heirs of the deceased ,or
 Where the deceased is survived by heirs, he maybe entitled to a portion equals to that of the
share of one of the heirs of the deceased. This principle has been enshrined under Art.915 (1) and
(2) of the Civil Code.
 The legatees appointed by universal title are entitled to the deceased’s estate only after the
payment of other debts and legacy by singular title.
 Issue for discussion

The issue that should be dealt seriously is ; the relationship that

exists Between Art.915 (1) of the Civil Code that declared, "Unless
otherwise expressly provided by the testator, a legatee by universal title
shall be assimilated to an heir- at law " and Art. 939 (1) of the Civil Code
that stated, "Unless otherwise expressly provided, the appointment of a
legatee by universal title shall imply the disheirsion of the relatives of the
testator if they are of the second, third or fourth relationship
 The two Lines of arguments

Some legal professionals argue there is a substantial contradiction between the two
provisions .
While others say, the intention of the legislature stated under Art 915 (1) of the Civil
Code is to assimilate a legatee by universal title with the descendants of the testator not
with his ascendants and their representative. The intention of the legislator has been
clearly stated in the rules that are enshrined in Art.939 Sub Art.2 and 3 of the Civil
Code.
 Thus, they argue the contradiction between the two provisions is an apparent
contradiction, not of in their substance.
 legacy by singular title
A legacy by singular title is a concept employed in the succession law of Ethiopia without being
defined.
To this effect Art 912 (2) of the Civil Code simply declares any other disposition other than legacy by
universal title is a legacy by singular title.
 What one can deduce from this provision is that;
 Legacy by singular title is any testamentary disposition whereby a testator calls one or more
persons to receive the full or bare owner-ship of one or more identified property from his estate.
 The object of legacy made by singular title should be distinctly named and mentioned in the will
out of all other properties of the deceased.
 Besides, when the testator stipulate that a legatee shall have only the right to use and collect the
fruit of a certain property as it is stated under Article 917 (3) of the Civil Code, this property my
be designated as a legacy made by singular title.
 
 The distinction

I. Incase of legacy by universal title the reference is made to properties that

would exist at testator’s death pursuant to Art 911 of the Civil Code. That
would be portion that is ready for distribution. This in effect may include
the properties that are acquired after the deceased executed his will.
II. While in case of legacy by singular title, the testator should refer to the
property that exists at the time when the deceased made the legacy by his
will. Not only the testator should distinctly mention the object from
others but also the subject matter of legacy by singular title should be in
the ownership of the testator at the time when he makes his Will
 Conditional Legacies (Bequest)
 The testator can make his will conditional
Ethiopian law uses the term conditional legacy which according to Art 916
of the Civil Code refers the condition imposed on both in legacy by
universal title and in legacy by singular title.
The condition can be
I. Suspensive condition (condition precedent) ,and
II. Resolutive condition (condition subsequent)
 Suspensive condition (condition precedent)
A condition is deemed to be condition precedent when the
occurrence of an event or fulfillment of some thing by the
beneficiary is important for the effectiveness of the legacy.
 Insuch condition the legatee may take the legacy entrusted to him
only if condition stated by the testator comes to effect
 Resolutive condition (condition subsequent)

 Condition subsequent is a condition in which the non happening of an

event or breach of some thing results in a defeat on the estate already
vested. In this case the happening or non happening of the event puts an
end to the right of the beneficiary on the property that is acquired by will.
 Under Ethiopian law, legacy made under a condition that the legatee does
not do a specified thing or shall continue to do specified thing is deemed as
resoluative condition.
 Conditions must be moral, lawful and possible
 Under Ethiopian law the condition imposed by the testator
whether it is suspensive or resolutive may not have effect unless
the conditions imposed by the testator are valid.
 For instance, condition or any burden imposed on will is not valid
unless it is possible, lawful and moral. When the conditions
attached or imposed are impossible to perform or contrary to the
law or to the morality, thus the law nullifies such conditions and
the legacy is deemed to be absolute.
 Condition to marry/not to marry

 .article 917. Condition of marrying or not marrying.

 (1) Condition; that the legatee shall marry or shall not marry a
particular person shall be valid.
 (2) A condition imposed in general term on the legatee of not
marrying or not re-marrying shall be of no effect.
 (3) The testator may stipulate that the legatee shall have the usufruct
of certain property or shall receive a specified pension so long as he
shall not marry.
 Charge
 Art. 920. - Charges.
 The testator may bind heirs or legatees, on the value of the property, to give something to or to
do something for one or more specified persons.
 Art. 921. - 2. Limit of obligation.
 The heir or legatee on whom the charge has been imposed shall he liable for the execution of
such charge to the extent only of the value of the portion of the succession or of the legacy which
he has received.
 Art. 922. -- 3. Execution of charge.
 (I) The person to whose benefit the charge has been ordered may demand its execution.
 (2) Where such action is justified in the circumstances, such person may also require the heir or
legatee thus charged to give a security or another guarantee for the execution of the charge.
 (3) The same rights may be exercised by the person named for this purpose by the testator or, in
default of such person, by each of the heirs of the testator or by each of his legatees by universal
title
 substitutio vulgaris".

Art. 928. - “Substitutio vulgaris".

 (1) The testator may order that, in default of a legatee by
universal or singular title, some other person shall be called to
receive the legacy.
 (2) Unless otherwise expressly provided, a disposition to that
effect shall benefit the substituted legatee whenever the legatee
appointed in the first place cannot or does not want to receive the
legacy made in his favour.
 Art. 929. - Entails.
 Art. 929. - Entails. - 1. Principle.
 (1) The testator may order that his heir or legatee shall, on the expiry of a
certain period or on his death or on the accomplishment of a specified condition,
pass the property or certain property forming part of the succession to one or
more other persons who shall be substituted for him.
 (2) The heir or the legatee who receives the property in the first place is called
"the holder in tail".
 (3) The person to whom he shall pass the property on the opening of the
substitution is "the person called to succeed".
 Con..
 Art. 930. - 2. Persons who may be called to succeed.
 (1) The person called to succeed need not have the capacity to receive on the day of the death of the
testator.
 (2) It shall be sufficient that he can be determined and that he have the capacity to receive on the day
when the substitution comes into effect.
 (3) The substitution may also be made in favour of the descendants or of the heirs of holder holder in tail.
 Art. 931. - 3. Effects.
 (1) A disposition made in terms of art. 929 has, in relation to the property to which it refers, the effect of a
disposition prohibiting alienation or attachment.
 Art. 932. - 4. Limitation of power of the court.
 The court may in no case authorize the alienation or the attachment of immovable property on the-
application of the holder in tail or his creditors.
 Cont..
 Art. 933. - 5. Time for bringing action- opposing alienation or
attachment with in 2 years after opening of substitution
 Art. 934. - 6. Limitation of substitution to one passage-
 the testator can not put a provision that regulate once the property is
transferred to the person called to succeed.
 Art. 935. 7. Refusal by holder in tail-
 what if the person in tail refuses to accept the right?
 Art. 936. - 8. Default of person called to succeed:
 what if the person called to succeed was unable or can not succeed?
 Disherison: Express
 Art. 937. -- Disherison. - 1. Express.
(1) The testator may, in his will, expressly disinherit his heirs-at-Iaw, or any of them, without appointing a
legatee by universal title.
(2) In such case, the succession shall devolve as though the heir or heirs who has or have been disinherited
had died before the testator.
Art. 938. - 2. Special provision regarding descendants.
( 1) An express disherison of a child or other descendant shall be of no effect unless the testator hall given
in his will a reason which justifies the disherison.
(2) The court shall ascertain whether the reason given by the testator, assuming that it is correct, justifies
the disherison.
(3,) It may not ascertain whether, in the circumstances of the particular case, the reason given is correct.
Art. 940. -- 4. Prohibition of certain provisions.
Any provision whereby the testator orders the disherison, in whole or in part, of his heirs or any of them,
should they impugn the validity of the will or of any disposition contained therein, shall be of no effect.
 Disherison: Tacit
 Art. 939. - 3. Tacit disherison.
 (I)Unless otherwise provided, the appointment of a legatee by universal title
shall imply the disherison of the relatives of the testator if they are of the
second, third or fourth relationship.
 (2) It shall not imply the disherison of the descendants of the testator.
 (3) Where the testator is survived by descendants and has not expressly
disinherited them, the legatee by universal title shall partake of the succession
together with such descendants as if he himself were a child of the testator.
 Interpretation of Will 910, 913, 926, 927
 Interpretation may designate the avoidance of uncertainty or ambiguity of the language used in the
instrument.
 Interpretation of will comes to picture
I. First in most legal systems the need to interpret will provisions arises only when the provisions of the will are
uncertain or ambiguous because of the language used by the testator. when the terms of the will are clear the
court is not allowed to depart from the true intention of the testator expressed therein under the disguise of
interpretation.
II. Secondly, when doubts arise or when the terms of the will arte uncertain or ambiguous, the court should
interpret it in conformity with the presumed intention of testator to be deduced from the instrument itself
and other circumstances.
III. Thirdly, the law of succession puts down some presumptions which direct courts in the interpretation of will
provisions. For instance, under Art.911 Sub Art.1 of Ethiopian civil code where testator used such expression
like “my property” or “immovable property” and the like.