Chapter Three: part II

By:

Zerihun Yitayew
 Previously on Law Of Succession
A will is an instrument through which a person disposes property and
non-property issues with the view to take effect up on death
Will is ambulatory.
A will must fulfill all the essential requirements/conditions for validity
of a will.
The essential conditions include:-
 personal nature of will- no joint will(art. 857), no appointing an agent
with a power to make, revoke or modify will (art. 858), prohibition
against an undertaking on a will(art. 859)
Capacity
 Age above 16 years 860
 Judicially interdicted persons 861 and 862 cum 368
 Insanity: article 863
 Legally interdicted person: art 864
Cont…
Object of the will
Possible to execute; art. 865
Moral; art. 866
Lawful; art. 866
Free consent
Violence: art. 867
Undue influence: art. 868-875
Fraud: art. 876
Error; art. 877
 Today's Topics
In today’s session discussion will be made
regarding:
 Effect of nullity of a provision
 Types of will
 Formality requirements for different types of wills
 Proof of will
 Effect of nullity of a provision
Art. 878. -- Effect of nullity of a provision.
The nullity of a provision contained in a wil1 shall not entail the nullity
of other provisions contained in the same will, unless it appears in a
clear manner that there existed in the mind of the testator a necessary
connection between the execution of the provision which is null and
that of other provisions.
 Art. 879. - Nullity of conditions or burdens.
 (I) Where a testator has made a legacy to depend on a condition or has
imposed a burden on a legacy, such condition or burden shall be
deemed not to have been attached or imposed where it is impossible or
contrary to the law or morality.
2) In such case, the legacy shall not he null, notwithstanding that the
consideration of the condition or burden induced the testator to make
the disposition.
 Types of will

Art. 880. - Various kinds of wills.

There are three kinds of wills:
(a) public wills;
 (b) holograph wills; and
(c) oral wills.
 Formality requirements
For a will made by a person capable to be valid, the formality
requirements provided by the law should be complied with.
 In the modern legal systems, a will may be made in written form
or by oral declaration (non-captive will).
 The legislatures of different jurisdictions have the power to
regulate the form by which the will should be made.
 The same holds true for the Ethiopian legislature.
 Formal requirement has a great practical importance under
Ethiopian law, since no value is given for a Will executed without
complying the formalities prescribed by law.
Under Ethiopian law of succession, both written and oral
wills are equally valid provided that they are made in
compliance with the requirements prescribed by law.
 Formality requirement for public wills
1. a public Will should be written by the testator himself or by other
person under the dictation of the testator . (881(1))
 Dictation implies that what the other person writes should be
the words which come out of the testator himself.
2. A public will also should be read in the presence of the testator
and four witnesses (art. 881(2))
3. Should mention of the fulfilment of the above requirement
formality 881(2)
4. The date it is made (art. 881(2))
5. the testator and the witnesses should immediately sign the will
or affix their thumb mark thereon.
How do you qualify “immediately”?
What if one of the formality requirements are not met?
 Witness capacity
Art. 883. - 3. Capacity of witnesses.
(1) The witnesses to a public will shall themselves be able to read or
to hear what is read and to understand the language in which the
will is drawn up.
(2) (2) The will shall be of no effect where such requirements are not
fulfilled.
Can a deaf or blind person able to be a witness??
Can a minor be a witness?
What about insane person?
Art. 882. - 2. Number of witnesses.
A public will shall be valid where it is made in the presence of two
witnesses one of whom is a registrar or a notary acting in the discharge
of his duties.
 Holograph will. - 1. Form
1. (1) A holograph will shall be of no effect unless it is wholly
written by the testator himself.
2. (2) It shall be of no effect unless it says in an explicit
manner that it is a will.
3. (3) It shall be of no effect unless each of the leaves which
make it up is dated and signed by the testator.
Art. 885. - 2. Typewritten will.
A holograph will typewritten by the testator shall be of no
effect unless it bears on each of its leaves a handwritten
indication of such fact.
 Cont..
Art. 886. - 3. Testator unable to understand the
will.
A holograph will shall be of no effect where it appears that
the testator, being illiterate or not knowing the language in
which the will is drawn up, has reproduced graphic symbols
without understanding their meaning.
 Common forms
Art. 887. - Date of will.
(I) A public or holograph will shall be of no effect where it
does not show the day, month and year on which it is made
or does not contain other indications to the same effect.
(2) The falseness of the date shown on the instrument shall
not entail the nullity of the will where it is evident that it is
due to a mere inadvertence and the true date of the will can
be established with sufficient accuracy by the aid of
indications taken down from the will itself and from other
written documents emanating from the testator.
 Cont..
Art. 888. - Will "per relationem".
A public or holograph will shall be of no effect where it
cannot be understood unless it he supplemented by
documents which have not been written and signed by the
testator
 Cont..
Art. 889. - Erasures, cancellations and words
written over.
(1) A public or holograph will shall be of no effect where it
contains erasures, cancellations or words written over others
which may modify the will of the testator.
(2) No nullity shall follow where the erasures, cancellations or
words written over others have been approved in an explicit
manner by a note signed by the testator and in the case of a
public will, by the witnesses.
 Con..
Art. 890. - Additions.
(1) The provisions of Art. 889 shall apply where a public will
contains additions in the margin or between the lines thereof
or after the signatures of the witnesses.
(2) A holograph will shall be not vitiated by such additions.
 Con..
Art. 891. - Deposit of wills.
(1) A public or holograph will may be deposited with a third
party, in particular a notary or in a court registry.
 (2) A register, showing in alphabetical order the names of the
persons whose wills have been so deposited, shall be kept by
each notary and in each court registry.
(3) An indication shall be made in the register of the date when
the deposit of the will has taken place.
 Oral will. - 1. Form
Art. 892. - Oral will. - 1. Form.
An oral will is that whereby a person who feels that his death is imminent
declares verbally the dispositions of his last will to two witnesses.
Art. 893. - 2. Contents.
 By means of an oral will, a testator may only:
(a) directives regarding his funeral;
(b) make dispositions for particular legacies the amount of each of which
may not exceed five hundred Ethiopian dollars;
(c) make provisions regarding the guardian or the tutor of his minor
children.
Art. 894. - 3. Sanctions.
(1) Any other disposition made by an oral will shall he of no effect.
(2) Legacies exceeding five hundred Ethiopian dollars ordered by an oral
will shall he reduced to that amount.