LAW of SUCCESSIONS

Tutorial

ABRAHAM G.
 1. Introduction

 The Law of Successions is inextricably intertwined with many other

branches of law including, but not limited to, the laws of family,
property, and contracts
 promotes equality providing for an identical treatment of men and
women, as well as all children – irrespective of whether they are
legitimate, illegitimate, or adopted
 it recognizes the right of a person to dispose of his property in
whatever manner he likes after his death, on condition that he does
so by a legally valid will
 Cont’d
 Strikes a balance between the right of the deceased to dispose of
his property in whatever lawful way he thinks fit and the interests
of rightful successors and creditors, who have legitimate claims
over the estate.
 It can be testate or intestate or combination of the two.
 It deals with the issues like, what constitutes the inheritable
property of the deceased, what rights and powers does the testator
have, the rights and obligations of the heirs and/legatees, the
mechanisms of devolution of succession ( intestate and testate
ways), the formalities of making a will, mechanisms of revocation
and lapse of will.
 2. The Concept of Patrimony
 Patrimony is the estate that descended from the father to his descendants. But
it does not exclude the estate that descends from the mother or any ancestors
 It has basic features
 Only persons have patrimony
 Every person necessarily has a patrimony that has or has no property at all.
Attached with Personality
 Patrimony is a unit. All the rights and liabilities make one unit, but heirs have
two patrimonies.
 Patrimony is inseparable from the person. Transfer of patrimony in its totality
takes place only after the person’s death.
 3. Opening of Succession

 Article 826 of the Civil Code, the succession of the person opens at the place he had
his principal residence at the time of his death. Art 174, normal residence is principal
residence
 It is appropriate to consider the principal residence of the deceased the place where
he has most of his inheritable property.

4. Things making up a Succession /E.g. Art 827 Life Insurance/

 Rights and obligations of the deceased that can be transferred to his heirs and/or
legatees are the constituent elements of the succession. Own property, contracts,
valued papers, and rights from court proceedings or others.
 Generally proprietary or non-proprietary rights can be inherited
 Capacity to Succeed Art 840
 Capacity is a legal requirement
 Surviving the deceased and unworthiness are the basic requirements. Representation is exception
to survivorship
 Viability for a child is a condition
 no distinction based on the status of a child
 sex, age or nationality of the heir has no effect on determining his right to succeed

 Commorients—persons with reciprocal right to succeed die simultaneously. When not possible to
identify who survived who, each will be seen as the last survivor concerning his succession and
they cannot succeed each other. Art 832
 If an heir dies after the deceased, his share will pass to his heirs. Art 833
 Cont’d
 Unworthiness emanates from; Art 838 & 840
A. criminal conviction (killing /committed or attempted of the deceased himself or
his descendant, ascendant, spouse/
B. false accusation entailing 10 years punishment of the above people
C. preventing from making/modifying/revoking a will (3 months prior to death)
D. intentionally destroying/disappearing/altering last will
E. presenting false will /perjury/.
 Unworthiness after the death of the deceased has no effect on the heir. Art 839
 Express pardon in a will or legacy order knowing the facts by the deceased can
cease unworthiness. Art 841
 6. Intestate Succession Art 842 ff
 When the deceased leaves no will or the will is invalidated by court, the succession is intestate
 Older than testate succession
 Descendants are number one candidates to succeed a person and all have equal right /First
degree/. No other degree heir is allowed to succeed when there are descendants. They can
represent their ascendant for the succession of another person with the exclusion of all other
degree heirs
 Ascendants are second degree heirs when the deceased is not survived by descendants
 Grandparents are third degree heirs
 Great-grandparents form forth degree
 Paterna paternis materna maternis is exception to devolution of succession based on the heirs’
degree starting from second degree. An heir affected by this rule can get Usufruct. Non-existence of
heirs in one of the lines restrict this rule.
 7. Representation and Renunciation
 The descendants of the predeceased heir shall take what would be taken by
the predeceased heir, had he been alive /per stripes, not per capita /.
 Legal bond is required to represent
 Unworthy and renouncing heirs can’t be represented b/c one can’t transfer a
right he don’t have
 An heir can renounce the succession /not willing to participate/
 Escheat is devolution of succession on the state. It occurs when there are no
heirs of the deceased up to the 4th relationship.
 8. WILLS
 Strictly personal, the testator can make his own arrangement
 Unilateral declaration of intention which does not require receipt by another party to become complete.
 Requirements for making a will;
1. The testator needs to possess testamentary capacity (18 years, not interdicted and sane) at the time of
execution. If the court thinks the provisions aren’t affected by the state of health of the interdicted person,
it can hold whole or in part but legacies exceeding 10,000 can’t be maintained and heirs-at-law shall
receive ¾ of the succession in any way. Insanity isn’t a ground for incapacity unless notorious and legal
interdiction isn’t a ground at all.
2. Strictly personal (only the testator himself can make it and joint will is prohibited)
3. Specify in a sufficiently clear manner its beneficiary or its object, otherwise it shall be of no effect.
4. The testator must be free from violence or undue influence (not in principle—Art 868 to 875) at the time of
making
5. the formal legal requirements were observed
6. not contravene legal prohibitions or public policy
 Cont’d
 Will has Ambulatory nature--- only takes effect after the death of the testator
 Fraud isn’t a ground to invalidate a will
 Error must be fundamental to invalidate a will and it must evidenced by the will itself or a reference document of
the will
 A will that does not satisfy the required formalities will be invalid by the court.
 Existence of two parties (donor and donee) and execution time (will after death of the testator) are the basic
differences between donation and will.
 Invalidation or nullity of some defective provisions of a will is possible unless such nullity affect the execution of
other provisions. Art 878
 Testamentary provisions made in favor of, guardian/tutor; spouse, physician/clergymen/; notary/witness or
intermediaries of these people; who are expected to exert undue influence on the testator can be invalidated or
reduced by the court. Undue influence by others isn’t a ground for invalidation/reduction
 Cont’d
 Application for invalidation or reduction for a testament in favor of spouse by descendants only; in favor of
others by ascendant, descendant, spouse only. Time for application has 3 months limitation since application
for execution of the will by the right holder. Art 874
 The testator can appoint arbitrators on the will for resolving disputes regarding liquidation or partition. Art 941
 Condition or burden in a will can be nullified if it’s impossible or contrary to law or morality. Only the condition
will be nullified Art 879
 Suspensive or precedent (waiting until the condition is fulfilled) and resolutive or subsequent (returning the
thing upon fulfillment of the specified condition) conditions are recognized by the law.
 In suspensive condition the legatee and in resolutive condition any interested person can apply for guarantee to
the court for fulfillment of the condition
 Can the testator put marrying or not marrying a specific person as a condition nowadays?
 Charge is the order of a testator against the heirs and/or legatees in which the testator binds them to take some
responsibility or take care of one or more persons up to the value of the legacy. Failure to meet the charge did
not result in dissolution of the legacy unless the testator stated it and regulated the consequence. Good faith
third parties who acquired the property are protected. Art 920 ff
 Cont’d
 The testator can also appoint the heirs or other persons to select beneficiaries from among a specified category of
persons.
 Substitutio vulgaris is the situation where the testator orders another person to take the legacy in cases where the
appointed universal or singular legatee can’t take it or doesn’t want it.
 Legacy made in favor of the poor is valid (the poor in the deceased’s principal residence)
 Entail—returning the thing upon expiry of a certain period, death of the legatee or fulfillment of a specified condition.
Holder in tail and person called to succeed (only required having capacity on the day of substitution, not on the day of
the testator’s death). Art 929
 Refusal by the holder, the provisions of the will for this effect or failing such provisions, order of the court will
determine the succession.
 Entail prohibits alienation or attachment of the property. The court has no power to order alienation or attachment of
entailed immovable if applied by the holder in tail or his creditors. The testator can’t determine the fate of the
property after it is transferred to the person called to succeed.
 The holder in tail can decide on the thing if for any reason the substitution can’t be effected
 Unless stated by the testator, his heirs have no right on such property and the property will pass to the heirs of the
holder in tail.
 Can the testator put marrying or not marrying as a condition nowadays?
 9. Form of Wills
 There are three types of wills (Art 880) and each has its own legal requirements
because the testator is not in the position to defend himself when the will is
opened.
 If a public or holograph will can’t be understood without referring to another
document which isn’t written and signed by the testator, it will be invalidated.
 Erasures, cancellations, words written over or additional words on the
margins/between the lines (additions work only for public will, not for holograph
will) are grounds of invalidation unless explicitly noted and signed by the testator
for holograph will and testator and witnesses for Public will.
 Wills can be deposited with a third party, especially notary/registrar
 Making two or more wills is possible. All can be enforced together unless they are
contradictory. Last will is prevalent if two or more wills are contradictory
 A. Public Will

 It must be read in the presence of the testator and four witnesses and
this needs to be indicated in the will plus the date and immediate
signature by the testator and the witnesses /the most important
requirement/
 He can write it himself or dictate another person
 If one of the witnesses is a registrar or notary in discharging his duty,
two witnesses are enough
 The witnesses need to read or hear what is read and understand the
language of the will, otherwise it will be invalidated
 B. Holograph Will
 Totally made by the testator himself in the absence of witnesses.
 Additional single word by another person is a ground to invalidate it
 Explicitly indication in the holograph will that it is a will and date and signature on each page is a must
 If typewritten, handwritten indication of such is mandatory
 Falseness of the date isn’t a ground to nullify the will if there are indications on the will or other
documents written by the testator as to the accuracy of the making date

C. Oral Will
 Orally in the presence of two witnesses
 Funeral arrangements, assigning guardian/tutor and/or not more than 500 birr disposition for particular
legacies /excess will be reduced to 500/ are the only contents of oral will
 10. Proof of Wills

 The one who claims a right in a will has to prove the existence and
the contents of the will by producing the original will itself or certified
copy
 No other means is allowed to prove it for execution /E.g witnesses,
video recorded while the testator making the will…/
 Existence and contents of the will can only be proved by evidence for
the purpose of claiming damages from the person who destroys the
will.
 11. Revocation and Lapse of Wills
 Will is always revocable, until the death of the testator.
 Unless provided, revocation can’t revive a previous will
 Wills can be revoked by;
A. making another will (only parts of the previous will can be revoked in this way by leaving the rest intact)
B. expressly revoking it by explaining this on a paper made in the same formalities as a will (same is true as the above)
C. physically destroying the will (mere throwing isn’t enough) or
D. alienating the property stated on the will to another person (E.g. selling or donating)

 Lapse of a will happen by application of the law;

A. Failure to deposit holograph will within 7 years after making (not for public wills)
B. Birth of a child (for both types of wills) if he accepts the succession. But the court can maintaining the will as total or
partial if it’s believed that the testator would have maintained it while knowing about the birth or pregnancy. In any
way, the child is entitled to ¾ of the intestate succession
C. Testament in favor of a spouse, dissolution of the marriage by any means other than death
D. Death before the testator (can be represented for singular or universal title), unworthiness or renunciation.
12. Interpretation of Wills and Different Kinds of Dispositions
 The court can interpret a will to find the intention of the testator (from the will or other circumstances), but it can’t
rewrite the will in the name of interpretation.
 Legacies by universal title /one or more people/—represents the whole or portion of the estate. No special form is
required and assimilated to heirs-at-law.
 Legacies by singular title--- single items /any other disposition than universal/

13. Disherison
 The law allows the testator to disinherit one or more of his heirs. The testators power to punish his heirs-at-law
 It can be tacit (not for descendants, appointing universal title legatee, 2nd degree or more) or express (by saying so
on the will).
 Express disherison depending on the heirs contesting /impugn/ the validity of the will or any disposition has no effect
 When there is only a legatee by universal title in the will, the descendants partake the property with him as if he’s a
child and it will not result in disherison of descendants.
 The succession shall devolve as though the expressly disinherited heir died before the testator (See Art 937/2/). Can
the heirs of the disinherited descendant take the property of the testator by way of representation??
 Justifiable reason (not necessarily correct) is required by the testator when disinheriting descendants.
 14. Liquidation

 Liquidation means the process of determination of the rightful recipients and constituents of the succession; the
recovery of debts due to and the payment of debts due to it; the payment of the legacies by singular title and the
taking of such other steps as are required to carry into effect the provisions made by the deceased. Art 944
 Winding up/screening/settlement of accounts
 The succession can’t constitute a distinct estate unless liquidated.
 Partition can’t take place before liquidation. All people who claim a right on the succession have undivided interest
 The estate is exclusive security of creditors /they can attach it/ and they have no right on personal property of the
heirs
 The liquidator shall first search for a will if the deceased has left any. Anyone in possession of the will is obliged to
declare the existence of the will. Art 962 and 963
 Determining who the heirs and/or legatees are, to what portion they’re entitled, manner of devolving the succession
and expressing who can be called if the succession is intestate are sequential acts of the liquidator.
 The liquidator shall declare to interested parties that the succession is intestate, at least 40 days after the death of the
deceased. Art 942
 Cont’d
 Opening of the will, 40 days after the death of the deceased (can be postponed if deceased ordered, for
funeral arrangements or heirs agreement). If discovered after 40 days, within a month of discovery and
must be deposited with notary/registrar. Art 965
 If deposited, office of the notary/registrar and if not, principal residence of the deceased is the place to
open the will.
 Heirs-at-law must be called and four capable persons must be present at the time of opening. All present
(including the liquidator) shall verify the validity and form of the will.
 The liquidator is obliged to receive, preserve, and administer the properties left by the deceased and
identify the eligible heirs and legatees.
 The deceased can appoint a liquidator on his will /testamentary executor/. Failing such appointment or
invalidation of the will or for intestate succession, the Heirs-at-law are ‘ipso facto’ liquidators and the
universal title legatees are ‘ipso jure’ joint liquidators acting along the heirs-at-law. /the two terms are
certainly misplaced!!!!!!/
 Minors or interdicted persons will be represented by guardian/tutor to liquidate
 The court can appoint a liquidator on application of interested person if; the succession is renounced by all,
heirs not known, escheat, validity of testamentary liquidator contested/difficult to ascertain, there is
conflict among liquidators, there are incapables without a representative, or the liquidator is
dishonest/incapable to perform
 Cont’d
 Voluntary act, no one can be forced to become a liquidator. Resignation is possible unless he
expressly undertaken to conclude or act for certain period. He’ll be liable if resignation is made at
inconvenient time and can’t be effected before another is appointed or it’s communicated to
other liquidators.
 Replacement, order of the court or accomplishment will terminate the function.
 Security for proper performance of the liquidator can be applied to the court by any interested
person
 The deceased by his will or order of the court can limit or give directions as to the manner of
performance of the liquidator
 In addition to those stated under Art 956, the liquidator can take all ‘necessary’ measures to
execute the will.
 When there are several liquidators, they shall act together but the will or the court can stipulate
otherwise. They can assign tasks to each one or authorize one of them to act alone and if he acts
without such authorization, voluntary management of the affairs of other person Articles (2257-
2265) will apply.
 Cont’d
 Justifiable remuneration can be given to the liquidator and it can be determined by the deceased, court or the
heirs
 The liquidator shall be liable for any intentional or negligent damages, but good faith can relive him from
liability by order of the court
 Persons present or represented on opening day shall declare within fifteen days to the liquidator, court or
arbitrators in writing as to the intention to apply for nullity of whole or part of the will or contest the order of
partition.
 Persons not present or represented on opening day, they can declare their intention to nullify within 15 days
after being informed by the liquidator. But in no case validity or partition can be contested after 5 years from
will opening day (for testate) or after death of the deceased (for intestate), absolute period of limitation. The
court can order provisional measures pending decision on the contestation. Art 973/74/75
 15. Option of Heirs and Legatees
 Heirs and legatees are not obliged to accept the succession or legacy
 Acceptance or renunciation is strictly personal to the heir/legatee and no one can exercise this right /including
creditors of the heir/---‘’ No necessary heir’’
 Acceptance or renunciation of a succession in advance is prohibited even with the agreement of the person
who’ll be succeeded (the deceased), but only after opening of the succession. Art 1115
 The creditors of the heir who renounce can apply for ‘Actio Pauliana’ --- within two years of renunciation for
annulment. Court can order annulment up to their claim, but can’t be annulled for the benefit of such heir.
 The heir shall declare renunciation within one month after informed by the liquidator about him being called to
the succession, but the court can extend this time up to a maximum of 3 months
 Renunciation shall be of no effect unless made in writing or in the presence of four witnesses within the above 1
or 3 month time.
 Renunciation in favor of specified persons is regarded as assignment of rights and such heir is deemed accepted
the succession. But if he renounced in favor of all heirs indistinctly and without compensation, it’s an actual
renunciation.
 Cont’d
 Renunciation in principle is irrevocable, but for violence by any person or fraud of a co-heir/legatee and their
intermediaries. Application for revocation must be made within 2 years from end of the violence or discovery
of the fraud /10 years absolute period of limitation/. Provisions of ‘invalidation and cancellation of contracts’
will apply for the effect of revocation.
 Acceptance can be implied (by doing acts unequivocally showing intention or not renouncing within the time)
or express (by written act)
 Acts of preservation or administration did not show implied acceptance. Art 984
 Acceptance is effective from the day the deceased died and renunciation makes the heir never have been heir
at all. His portion will be given to his co-heirs or next degree heirs when appropriate. These heirs can
renounce the portion within 1 month of knowing it.
 A legatee by singular title can accept the legacy and renounce the succession or vice-versa. Art 989/3/
 Acceptance is irrevocable and can’t be annulled.

 Misappropriation or concealment of property forming part of the succession by an heir, he shall be deemed
accepted the succession. Art 985
 Cont’d
 Conditional or time limited acceptance or renunciation is deemed not decided at all.
 partial acceptance or renunciation is not allowed.
 ‘Petitio hereditatis’ – application (by true heirs) for annulment of certificate of heir and restitution of the
property within 3 years. Unlawful enrichment will follow on the defendant. 15 years absolute period of
limitation unless it’s a family immovable
 The debt of the heir can’t exceed the value he can receive from the succession. Art 1054

16. Debt payment in descending order

A. Funeral expenses
B. Administration and liquidation
C. Debts of the deceased
D. Maintenance debts
E. Legacies by singular title
 17. Closure of Liquidation
 Liquidation will be closed when all the property of the succession is disposed of. It could be closed
before legatees by singular title are paid and even at any earlier stage at which the inheritance is left
with no more resources.
 If there is sole heir, the inheritance will merge with the personal property of the heir and if there are
more, it will be joint property until partition.
 Creditors of the heirs have right of recourse against the merged inheritance with the personal
property, but not before partition.
 Creditors of the deceased who appear after closure will have no better right than the personal
creditors of the heir and they can only claim to the extent of the share received from the succession.
 Singular title legatees are liable to post-liquidation creditors only in default of the heirs (not on other
singular legatees) and to the value received. They are assimilated to a simple guarantor in the law of
contracts (raise defenses, benefit of discussion, subrogation right…)
 18. Partition of Succession
 Partition may not necessarily follow after closure of the liquidation, the coheirs may
continue as joint owners of the property
 Co-heirs may not force sale by auction or partition of a particular thing forming part
of the succession, they can only require the whole partition of the inheritance any
time after liquidation. Art 1061 & 62
 If partition is required at inconvenient time, the court can order maintaining it as
joint property for not more than two years. And unless the court orders otherwise,
the joint ownership will continue when the manner of partition depends on birth of
a child.
 The testator by his will or co-heirs by contract can limit the right to apply for
partition for not more than five years. If it exceeds 5 years, will be reduced to five
 19. Partition how Made
 Partition is by agreement of the co-heirs, failing agreement it shall be drawn by the most diligent heir and submitted to
the court.
 As a principle, partition is made in kind
 Nullity of partition can only be invoked by heir in whose absence the partition was made. The period of limitation for
invoking nullity is one year from knowing the partition or absolute ten years from death of the deceased.
 Partition follows the directions of the deceased, and failing such, Art 1083 to 1096

20. Relation between co-heirs after Partition

 In principle, there will be no binding relation, whether contractual or legal, as between the co-heirs once the
succession has been fully partitioned.
 Operation of the law can extend the relation after partition, Art 1060-64
 The co-partitioners are bound to provide warranty (the value of his share) to each other to ensure the safe delivery of
their shares in the succession after partition.
 The warranty is the same as the seller owes to the buyer
 21. Collation by co-heirs
 Collation is the bringing back of properties that were given by donation to a descendant by the ascendant. It’s executed by taking less
from the succession and agreement before the death of the deceased as to collating in kind is prohibited.
 The value of the property is that stated on the donation deed or failing such, calculated only by the price at the time of donation
 If the property to be collated is lost, the heir is still required to collate.
 No collation more than the share in the inheritance
 Only descendants are subject to collation, but the deceased can impose it on other heirs. Fair share distribution is the justification.
 The descendant obliged to collate must accept the succession (renunciation relive from collation) and the property must not be
exempted from collation.
 Donations or liberalities subject to collation are; Art 1066
 • Any money that is given to establish the heir;
 • Money paid to settle the debts of the heir;
 • Property or money given to the heir during his marriage in the form of dowry.
 Liberalities in preference or addition to the heir’s share are exempted. Express clause is required for Donations for such intention of
exemption, but for legacies, the intention can be evidenced by all means
 Heir who becomes heir after the liberalities is obliged to collate
 Heir by representation is obliged to collate liberalities made to him personally.
 Collation can’t be required by creditors of the succession or legatees
 22. Annulment, Correction of Partitions and Rights of the Creditors

 In principle annulment of partition is same as other contracts, save for the special provisions (Art 1102-1109)
 If there is omitted property, partition will be made on that property only without affecting the previous
partition.
 If an heir conceals a property in bad faith or failed to collate, he’ll be deprived of his partition on that property
or the value of the donation respectively. Art 1104 & 07
 Erroneous valuation or failure to collate leads to correction of partition and the application is only made by the
co-heirs. The limitation is three years. Art 1105 & 06
 Creditors and co-heirs can contest the partition if it’s made in fraud of their right and without them whether an
opposition is reported by them or not.
 Creditor shall divide his claims among the heirs based on their share, unless the claim is indivisible. The debt
share of an insolvent heir will be covered by the others on pro rata
 Legatees shall be assimilated to creditors in case of insolvency
 An heir who paid the debt of the succession after partition shall have right of recourse against the others and
the provisions of ‘suretyship’ will be applicable
 23. Partitions by Donation and Assignment of Rights to the Succession

 Future succession (while a person is alive) is prohibited (contractual or gratitude), but ascendants can
donate their property to descendants while alive based on the forms of donation provisions.
 If the ascendants omitted a child in the donation or a child is born after the donation, application for
nullity can be made. The exceptions are disherison and allotment of sufficient property for the
omitted child. But the disherison itself can be contested
 Unless specified in the donation act, if a descendant suffers lesion (lesser value) of more than 1/4th
by the donation, nullity can be applied to the court. The valuation will be made based on the value of
the property on the day of the partition. 2 years limitation from the date of death of the ascendant
or absolute ten years from date of partition. Art 1123
 Assignment of a right is possible after opening of the succession and if the thing is a determinate
one, after the property is allotted to him as his own. Art 1124
 Co-heirs have right of pre-emption if assignment of right is made, except for co-heirs assignment. The
provisions of joint ownership and usufruct are applicable (1389-1409)
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