Chapter Three: Part III

By

Zerihun Yitayew
 Previously on Law of Succession

 Types of will
 Public
 Holograph
 Oral
 Formality requirements for different types of wills
 Public wills
 Written form(by the testator or a third person)
 Attended by four witnesses
 Read to the witnesses and the testator
 Mention the will is read to the testator and the witnesses
 Signed by the testator and the witnesses forthwith.
 Cont..

 Holograph Wills: Form

- wholly written by the testator himself.
 Should expressly say it’s a will
 Each page should be dated
 Each page should be signed
 If it is Type written it should bears on each of its leaves/pages a handwritten
indication of such fact.
 Oral wills:
 It’s a verbal declaration
 The testator must fill his death is imminent
 It should be made before two witnesses
 Cont..

Art. 893. - 2. Contents [of an oral will ]

By means of an oral will, a testator may only:
( give 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 be
reduced to that amount.
 Today’s Session

 In todays session discussion will be made regarding:

 Possibility of More than one will
 Proof of will: burden of proof, what to prove and how to prove
 Revocation and
 Lapse of Wills
 Possibility of More than one will
 Under Ethiopian law of succession making more than one will is possible.
 To this end article 895 of the civil code provides that
Art. 895. - More than one will.
(1) Testamentary provisions made by a person may be contained in one or more
wills.
(2) The provisions contained in various wills shall all be enforced together
where such course is possible.
(3) Where the provisions of two wills cannot he enforced together, the
provisions contained in the latest will shall prevail.
 Proof of will: burden of proof, what to prove and how
to prove
burden of proof
 The burden of proof lies on the one who claims a right in a will.

 what to prove
 The one with the burden of proof has to prove one or both of the following two things.
I. First, he/she has to prove the existence of the will. That is, he/she has to show a will made
by the testator.
II. Second, he/she has to prove the contents of a will. In other words, the claimant has to
show the fact that he/she is beneficiary of the will.
 To these end, article 896 provides
Article 896. Proof of will: Burden of proof.
“Whosoever claims rights under a will shall prove the existence and the contents of such will.”
 how to prove the existence and content of will
 how to prove the existence and content of will shall be seen from two perspective:
execution purpose and for claiming damages purpose
 how to prove the existence and content of will execution purpose?
As per article 897(1&2) of the civil code:-
 The existence and contents of a public or holograph will shall be proved only by
producing the original will itself or the copy of the original will, certified to be true
by the court registrar/ a notary.
 The court registrar/notary could issue the copy of the original will, if he/she had
received the original will to be deposited in his/her archives.
 Otherwise, the claimant shall only present the original will.
 Therefore, to get execution of a will, presenting the will itself is obligatory and no
any other means of evidence can be possible. For example, witnesses cannot prove
the contents of a public will or uncertified copy of will.
how to prove the existence and content of will for claim of damages purpose

As per article 897(3)

 Ifsomeone destroys or causes the destruction of a will by his/her fault or
negligence, such a person may be obliged to pay compensation to the
beneficiary of the will.
 To get compensation from the person who has destroyed or caused the
destruction of the will by his/her fault or negligence, the beneficiary can
prove the fact that he/she is a beneficiary by any means of evidence.
 For instance, he/she can prove that he/she is beneficiary of the will by
producing witnesses or uncertified copy of the will
 Revocation and Lapse of Wills
A will is always revocable, until the death of the testator. A testator may make an agreement
with a beneficiary not to revoke the will.
 However, sometimes elderly people who have no descendants of their own may promise to
leave some property to a person, on condition that the latter nurses the former.
This promise cannot be enforced as the will is still able to be revoked (this is one aspect of
personal nature of will)

In Blacks Law Dictionary revocation of will is defined as follows;

Revocation of will is recalling, annulling or rendering inoperative of an existing

will by some subsequent act of the testator which may be, by making a new will
inconsistent with the terms of the first or by destroying the old will or by disposing
of the property to which it is related or otherwise..
 How wills are revoked?

 From the above definition we can grasp that There are various
ways in which a will may be voluntarily revoked. These include.
A. express revocation .
B. Implied revocation .
C. By destruction.
D. By alienation of the thing bequeathed
Let us see them one by one
 Express revocation.
 The testator may, in his will include a statement like: ‘I hereby revoke all
former wills and testaments made by me’.
 The testator may also revoke specific clauses of a will, while leaving the
rest of it intact.
 One thing that you have to bear in mind is that the existence of another
will does not always suggests a revocation.
 To this end article 898(1) provides that:
“ A will shall be revoked in its entirety where the testator expressly
declares 'in the forms required for the validity of will that he
revokes his will.”
Can he revoke a public will orally or vies verse?
 Implied revocation
 Implied revocation refers to a situation in which the testator makes a will
which can not be enforced with his former will.
 This is a scenario in which there is no an explicit stipulation to revoke the
previous will; rather, the testator made a will which, owing to inconsistence,
can not be enforced together with the previous will(s).
 In such cases, the new will usually impliedly revokes a previous will (see
article 895(3))
 To this end, article 898(2) provides:
“It [will]shall be revoked partially where the testator, in the same form,
makes a disposition which cannot be executed together with earliert will.
 By destruction

 The other instance of revocation of will is destruction, cancelation. To this

end, article 899 of the civil code provides:-
(1.) The testator may revoke his will or a provision contained therein by
materially destroying or by tearing or by cancelling the content thereof, in a
manner that shows sufficiently his intention of revoking or modifying his
will.
(2) Unless the contrary is proved, the testator shall be deemed to have wanted
to revoke his will where he has done anyone of the acts hereinbefore referred
to.
(3) Unless the contrary is proved, the destruction or cancellation of the will
shall be deemed to have been done by the testator.
 By alienation of the thing bequeathed
The second way of revoking a will impliedly under Ethiopian law is the alienation of
the property bequeathed by the testator willingly whether in whole or in part pursuant
to Art 900 of the Civil Code.
This revocation is absolute under Ethiopian law. The fact that the property alienated
comes again to the ownership of the testator may not revive the will revoked as it is
stated under Art 900 (2) of the Civil Code.
In the succession law of some countries, any attempt to alienate the property by the
testator is considered as an implied revocation of will.
 Cont..

According to most authorities, the very offer to sell or to give away the
property to other person, though not resulted in the loss of testator’s
ownership over the property, actually it indicates the intention of the
testator not to pass it to the beneficiary at his death
 The succession law of Ethiopia does not mention the effect of any
attempt by the testator to alienate the legacy on the effectiveness of his
will.
 What if substantial change is made to the character of property
bequeathed?
 Effect of revocation (art. 901)
 Art. 901. -- Effects of revocation .
1) Unless otherwise provided, the revocation of a will shall not
cause the provisions of a previous will to revive.
21 Testamentary provisions which have been revoked shall not be
executed notwithstanding that the new provisions which have
replaced them cannot he enforced owing to the incapacity of the
legatee or his renunciation of the legacy for any other reason.
 Lapse of Wills

 Lapseof will is the termination of a right, interest, as a result of the

passage of time, or failure of a condition, or a change in circumstance.
Unlike revocation of which is the result of the act of the
testator, Lapse of will takes place by the operation of the
law.
There are a number of reasons for the lapse of a will by the
operation of the law.
The reasons depend on the type of the will. Therefore,
various types of wills have various reasons for their lapse.
 Lapse of Oral will (art. 902)
As per article 902 of the civil code, “An oral will shall lapse
three months after it has been made, where the testator is
still alive on such day.”
 Failure to deposit a holograph will (art. 903)
 According to Art 903 of the Civil Code, a holograph will shall
lapse where it is not deposited with a notary or in a court
registry within seven years since it has been made.
 No such imposition exists for a public will.
 Birth of child (art. 904)
Another reason for the lapse of a will is birth of a child. 
 If a child is born after a will is made (whether a public or a holograph will) such a
will, shall lapse if the newly born child capable to succeed .
This being the general rule, article 905 provides an exception
 Art. 905. - 2. Restriction.
(1) In the case provided in Art. 904 the court may maintain the effects of the
legacies, in whole or in part, where it appears that, had the testator known the
circumstances, he would probably have maintained them.
(2) The child of the testator who is born after the making of the will shall in any case
receive three fourths of the share which he would receive in the intestate succession.
 Dissolution of marriage (art. 906)
 As per article 906 of the civil code, “Any testamentary provision made by the testator in
favour of his spouse shall lapse where the marriage of the testator with that spouse is
dissolved through any cause other than death.”
 Hence legacies made in favor of a spouse of the testator shall lapse where the
marriage of the testator with that spouse is dissolved through divorce or court
order when the marriage is concluded without observing the conditions for the
validity of marriage.
 However, such a legacy cannot lapse where the marriage is dissolved by
death.
 Survivorship , unworthiness, or renunciation by a
legatee (art. 907)
 As per article 907 of the civil code, “A legacy made in favour of a
person shall lapse where the legatee dies before the testator or he
cannot or does not want to take such legacy.”