The power to draft a will is a fundamental aspect of testamentary freedom, allowing individuals to dictate the distribution of their assets after death. However, this freedom is not absolute, especially when it comes to excluding certain heirs from inheritance. In Ethiopian inheritance law, the concept of “dishersion” (or disinheritance) is a complex area, governed by specific legal provisions and shaped by the jurisprudence of the Federal Supreme Court Cassation Bench.
What is Disinheritance?
Disinheritance refers to the act by which a testator, through a will, explicitly prevents one or more of their legal heirs from inheriting from their estate. This system is recognized and given legal effect when the will adheres to the provisions of inheritance law, specifying the reasons for such exclusion or, in certain limited circumstances, making the exclusion by silence.
According to Civil Code Article 937(1), a testator has the right to disinherit an heir. However, this right is not unfettered, particularly when it comes to descendants. Civil Code Article 938(1) clearly states that a will disinheriting a child or a descendant shall not be valid unless the testator has stated a valid reason for the disinheritance within the will itself.
The Nature of Disinheritance: Total Exclusion, Not Just a Smaller Share
Cassation File No. 47622 (Vol. 10) provides a crucial clarification: disinheritance means receiving no share whatsoever from the inheritance. It does not simply mean receiving a smaller share.
This ruling also highlights a protection for heirs: if a testamentary gift made by the deceased results in an heir, particularly a descendant, suffering a loss of more than one-fourth of the share they would have otherwise received under legal succession, that heir can challenge the distribution, even if the will doesn’t explicitly state disinheritance. This refers to the concept of “injury” or “loss” in inheritance, regulated by Civil Code Articles 1017 and 1123(1).
The Sufficiency of Reasons for Disinheritance of Descendants
For descendants, merely stating a reason for disinheritance is not enough; the reason must be sufficient in the eyes of the law and amenable to judicial review. Cassation File No. 205362 provides significant guidance on this point:
- Effective Disinheritance by Gift: The court clarified that if a testator makes a testamentary gift that causes another heir to lose more than one-fourth of their rightful inheritance share, this effectively amounts to disinheritance.
- Judicial Scrutiny of Reasons: Crucially, the court stated that whether the reason given by the testator for disinheriting a descendant is sufficient is a matter that can be examined by judges. This means the courts will not simply rubber-stamp any reason provided by the testator.
- Insufficient Reasons: The Cassation Bench specifically ruled that reasons such as “I was sick and he/she did not help me,” “he/she did not care for me,” or “he/she did not visit me” (often cited by testators) are not sufficient grounds to disinherit a descendant through a will. This interpretation is derived from a combined reading of Civil Code Articles 912, 915, 938, 939, 1047, and 1123.
In conclusion, while testators have the right to determine who inherits their property, this right is balanced against the legal protections afforded to certain heirs, particularly descendants. The Ethiopian courts ensure that disinheritance is not used arbitrarily but only under specific, justifiable legal grounds, thereby safeguarding the principles of fairness and family support within inheritance law.