Can a person present while discharging his duties be considered as a witness in a public will?

It is stipulated under article 881 of the Ethiopian Civil Code that for a public will to be considered valid, one of the requirements that should be fulfilled is it should be made in the presence of four witnesses. Article 882 has also put a certain condition where it would be valid if it is made in the presence of two witnesses; it is when it is made in front of a registrar or a judge in discharge of his duties. 

 But there is one confusing issue here. What happens in circumstances when a will is made in the presence of a registrar or a judge but this person is not enlisted in the will as a witness? 

A similar issue was entertained in the Federal First Instance Court. The court is its decision stated that since the will was made in front of the proper authorities, they should be considered as witnesses though they were not specifically enlisted in the will. 

But, up on appeal the Federal High Court decided other wise. If stated that, according to art-881 the number of witnesses present should be four. The mere fact that it was made in front of a judge or a registrar doesn’t automatically decrease the number of witnesses to two. This is because the only way two witnesses would be enough is where the registrar or the judge has been listed as witnesses. 

Having said that the court rejected the lower courts decision and invalidated the will. 

The cassation bench has rendered a decision on the matter basing on a decision rendered before on file no 36777.

It stated that if a will is made before the proper authorities stated under 882 of the Civil Code; even if the person is not specifically placed as a witness it should not be interpreted as if he is not one.  

Since the registrar or the judge is considered to have assisted in a way that the will was made with out any enforcement and with full freedom then two witnesses will be enough in accordance with article 882 of the civil code. 

After giving the above explanation the Cassation bench rejected the decision of the high court and said the will is valid. 

What we can grasp from this is that if a will is made in front of the people stated under article 882 of the civil code, then even if they are not specifically enlisted in the will as witnesses they will be considered as one and that the number of witnesses necessary in such cases is only two. 

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