Chapter Three:
Wills
By. ZERIHUN. Y
What is Will?
A will is a juridical act that shall have a legal effect after the death of the testator or the
will maker.
• wills are declarations of intention.
It is an instrument by which a person makes a disposition of his/her property and othe
non property issues with the view to take effect after his/her death.
A will is the instrument, which expresses the last wish of the testator.
By its nature will is ambulatory.
Ambulatory means that the will is of no effect until the testator's death, and a competen
testator may change or revoke it at any time before his/her death.
Since it is ambulatory by its nature a will remains only a draft during the testator's life.
Essential Conditions for the validity of
wills
• The conditions prescribed by the law must be satisfied to make
a will a valid document.
• A will that does not satisfy the required formalities/conditions
will be invalidated by the court.
• The law is very strict with respect to the formality of making a
will.
• This is because, The testator is not in a position to express
his/her wish while the will is effective.
• the law has opted to enumerate very stringent conditions and formal
requirements for the validity of wills.
• Failure to observe these conditions set by the law would render the will
ineffective.
• Because courts do not hesitate to invalidate a will if they feel that the will
has not complied with the required conditions
• A will is the only evidence for the expression of the true intention of the
testator.
• Under this section we will discuss the conditions/formalities that needs to
be fulfilled a will.
Personal nature of wills (art. 857-859)
• The testator should seek the assistance of no one else.
• He/she should make the will by himself/herself.
• No other person may take part in the making of a will on behalf of the
testator or by way of assisting him/her.
• Nor the testator could appoint another person to represent him/her as far as
making, modifying or revoking a will is concerned.
• The testator is not in a position to express his/her true wishes after his/her
death.
• If someone is allowed to make a will on behalf of the testator, he/she can
take advantage against the true intention of the testator very easily
Another scenario of the personal nature of wills is the one stipulated in Article 858.
According to Article 858 of the Civil Code, no two persons may make a will together using
the same document.
The law believes that the testator cannot express his/her free intention when he/she makes a
joint will.
That is, if the testator makes a joint will, such will could influence his/her free intention to
some extent.
A will is an instrument that the testator can repeatedly alter or revoke during his/her lifetime.
It would be difficult for the testator to alter and revoke a will if he/she makes a will together
with another person.
This would definitely affect his/her freedom in making, altering and revoking a will. In
some other jurisdictions, a will made by spouses jointly is valid.
In Ethiopia, even spouses cannot make a will together irrespective of the fact that they have
community of property in marriage
article 859 is another manifestation of personal nature of will.
A person may not bind himself/herself to make, to modify or to revoke a will to
the advantage or disadvantage of any other person.
That is, he/she cannot promise to make a will to the benefit of a relative, a friend
or any other person. In addition, he/she cannot promise to make, modify or revoke
a will to the disadvantage of any person.
When it is said that the will maker cannot promise, it should not be taken in a
sense that if he/she promises to make, modify or revoke a will, the testator may
not be bound by such a promise.
That is, notwithstanding the promise made, the testator can revoke the will at any
time. See Art 859(2)
2. Capacity to make a will
Capacity is the ability to perform a judicial acts.
As you remember in your law of persons course that every one is presumed
capable unless the law provides otherwise.
Minors (art. 860 cumulative with 295 of RFC)
Judicially interdicted persons(art 861 cumulative with 368)
Notorious insane (art. 862)
Legally interdicted persons (article 863)
Execution impossible (865)
A testamentary provision which fails to specify in a sufficiently
clear manner its beneficiary or its object shall be of no effect.
The will need to be clear as to who will be called to the
succession and
What each heir is going to take.
Illicit and impossible provisions(art. 866)
• A provision contained in a will shall he of no effect
where its object is contrary to the law or morality (article
866(1)
• A provision in a will shall be of no effect where it cannot
he enforced (article 866(2)
Violence (art.867)
A provision contained in a will shall he of no effect where it
has been made by the testator under the influence of violence
(art. 867(1))
The threat should be made against the testator, the descendant,
ascendant, spouses of the testator and the threat could be
against the body, life or property of one of these persons.
In such case, the provisions of this Code relating to the
annulment of contracts on the ground of violence shall apply by
analogy (Art. 1706-1709 and 1808-1818
l ue n c e (a r t ic l e 8 6 8 - 8 7 5 . )
Un du e i nf
• Undue influence.-l. Principle.
“A provision contained in a will may not be invalidated by alleging an excessive influence which the
beneficiary of such provision or any other person had on the testator.”
The following people are considered as people who can exert undue influence.
1. Provisions in favour of guardian or tutor (article 869)
2. Physicians and Clergymen (article 870)
3. Notary or a registrar or witness of will (article 871)
4. Spouse of testator. (article 872)
5. intermediaries. (Article 873)
What about friends of the testator?
Article 874 regulate who and how an Application for reduction or invalidation be made.
Article 875 requires the court to give a reasoned decision on applications for reductions or invalidations
of wills as a result of undue influence.
Fraud (art. 876)
• The provisions contained in a will may not be invalidated on the ground
of fraud by alleging that the beneficiary used unfair frauds to gain the
testator's favour.
error (article 877 and 1697-1705 and 1803-1818).
Next session
1. Effect of nullity of a provision of will and
2. Various kinds of wills
