COMPARE AND CONTRAST TESTAMENTARY FREEDOM OF ETHIOPIA

Compare and contrast the testamentary freedom in Ethiopian civil code with that of civil law legal system

Testate succession is a succession in which the estate of the deceased person shall pass to his
heirs and/or legatees according to the order of the deceased in the will he/she made. In the civil
law legal system, a person who leaves surviving children never had complete freedom of
testation, and unless the children merit a just reason for disinheritance, they always obtain some
part of the parent’s succession despite contrary disposition by the will. It takes as its starting
point the obligation towards family, and imposes strict limitations on individuals’ freedom of
testation. In Ethiopia law of succession article 937 and 938 states that, the testator has wider right
to disinherit an heir by the will he/she provides but similarly as civil law legal system, which
Ethiopia is part of, the testator shall clearly state a justifiable reason why she/he has decided to
disinherit his/her descendants. This imposition is done for the protection of the interest of the
descendants. But obviously a justifiable reason is a subjective standard thus it’s enough if the
reason impresses a reasonable person, but any illegal or immoral requests are voidable by law. In
any case, any statement that the testator gives is a true statement. Therefore, the heir can’t claim
that the statement is untrue. This power though limited gives a means for punishment for the
misbehavior of his/her heir.
In civil law legal system forced heir ship is observed to protect children by securing for them
a minimum share ranging from one-quarter to one-half, this is also part of Ethiopian succession
regime, this reserve system evident in civil legal systems is named “reserve hereditaire “, this
reserve doesn’t just limit transfer at death, but also applies to transfers made during life. The
notary in charge of the inheritance case will calculate all lifetime gifts and if due to that the heir
don’t get the share of the estate reserved for them by law, the heirs are allowed to initiate a
lawsuit against the person or organization who received gifts from the decedent in order to
retrieve the amount necessary to satisfy the heir’s legal share.
In Ethiopian legal system, so as civil law legal jurisdiction, when a testator doesn’t make
someone beneficiary in his/her will, we say that he/she has tacitly disinherited such a person, but
this only works against the heir of second, third and fourth relationship plus if the testator
appoints someone as a universal legatee to receive the whole property and consider that person
as if he/she was one of his children, according to Art.339. In both civil and Ethiopian systems,
disinheriting heirs is a legally recognized power of the testator, however if the law considers that
the provisions of the will are defective with respect to any matter and if the heirs state defective
provision, then the provision that disinherits the heirs shall be of no effect, as stated in Art.340.
In conclusion, in civil law legal system as well as Ethiopian law, property is viewed as
something that is owned by family unit therefore individuals are limited in their ability to convey
property away from the family unit without a justifiable reason.
Compare and contrast the testamentary freedom in the Ethiopian civil code with that of common law legal system

In the common law legal system, the autonomy of the individual is characterized by the
doctrine of freedom of testation. Freedom of testation gives people the ability to distribute their
property at death as they wish, even to the extent of exclusion of their family member even if the
exclusion of the decedent’s children makes them wards of the state as a result. It’s said that this
freedom of testation had a starting point that property was owned by individuals (traditionally
men) and that families have very little claim to the husband/property, this reason is usually
criticized for being irrelevant or not for modern society but supports are providing a pragmatic
justification for freedom which is caregiving for elders for they should be allowed to reward
accordingly and individualization. In general common law legal system is very relaxed to the
extent of allowing individuals to disinherit for any to no reason, as opposed to Ethiopian civil
code which requires the testator to provide a justifiable reason.
The availability of the common law trust affords testators an additional level of testamentary
control. A trust is a device for holding property that allows the creator to establish continuing
conditions on the distributions of others through the use of conditional trusts, for as long as the
actions aren’t illegal or against public policy. Even though the actual implementation is
questionable, civil law countries have a number of limitations against the use of trust. But a
similar concept is evident in Ethiopian civil code Art. 916 concerning conditional legacies. Even
if both cases are different, they have a similarity on how they both grant the testator the right to
control the behavior of others during their lives and even after they pass on. In common law legal
system as well as the Ethiopian civil code, the conditions shouldn’t be illegal or against public
policy.
In common law legal system, the testator has the right to grant bequest subject to any lawful
conditions he/she select, beneficiaries of a testamentary instrument have no right to testamentary
bequests except subject to the testator’s conditions. Except for united states which is a
predominately common law legal system in the exception of Louisiana, other common law legal
systems are modifying their laws to provide greater protection for families by enacting family
maintenance statutes which allows them to petition the court to receive more than what was
given under the will, this can conceptually be compared with forced heir ship of civil law
countries like Ethiopia. This shows there is a trend of convergence between the two legal
systems.
In conclusion, Ethiopian civil code and common law legal system has certain similarities as
well as difference. The main similarity is the fact that both allow the disinheritance of
descendants through will but the difference is a justifiable reason is a requirement in the
Ethiopian civil law while a country within the common law legal system allows its citizens to
disinherit for any or no reason, for they believe a testator can dispose of his or her estate in
whatever way he or she wishes.
NAME: - YORDANOS NEGA

ID: - LGR/2795/11

COURCE: - SUCCESSION

ASSIGNMENT: - COMPARE AND CONTRAST TESTAMENTARY FREEDOM OF ETHIOPIA

SUBMITTED TO: - MR.YENEHUN BIRLIE

SUBMITTED ON: - June 3, 2019