06-12-2012

Succession-Wills

Authors

  • Maria Roumba, Advocate
    Senior Associate at Korelis & Co. LLC, Law Firm

Which are the major Cyprus laws in respect to Will and Succession?

The succession law in Cyprus is regulated by:

  • The Wills and Succession Law, Cap 195 which regulates the law in respect to wills and succession which was enacted in 1945 and since then it has undergone only 2 amendments. It is a composite edition of the English, the Ottoman and the Italian Law.
  • The Administration of Estates Law, Cap 189 which regulates the procedure regarding the evidence and the execution of wills and the administration of the estate of the deceased.
  • The Probates (Re-Sealing) Law, Cap 192 which is applicable in cases where the deceased passed away in UK or in another Commonwealth country and at the time of his death he had property in Cyprus. Specifically, Cap 192 regulates the procedure by which the Cyprus Courts re-seal the Letters of Administration or the Grant of Probate which was issued by courts in UK or in any Commonwealth country and an administrator is appointed for the estate of the deceased located in Cyprus.

How is it determined whether Cyprus law is the applicable law in each case?

In order to decide as to whether the Cyprus law is to regulate the will/legacy of the deceased, it has to be determined whether the deceased was domiciled in Cyprus at the time of his death. ‘Domicile’ is a broad concept but in strictly speaking terms it may be defined as the place the deceased person considered as his permanent residence and where he had an ample intention to spend the rest of his life. There are two kinds of domicile, the domicile of origin and the domicile of choice. The domicile of origin is the place where the deceased was born. The testator adopts a domicile of choice if he moves to another place and he adopts the domicile of that place. However, until he adopts the domicile of choice, he is considered to still possess the domicile of his origin. A person is only allowed to have one domicile at a time.

Once the domicile of the deceased has been determined, then his legacy must be classified into immovable and movable property as they are treated differently by Law. ‘Immovable property’ has been defined in the same way it is defined in The Immovable Property Law, CAP 224 which includes, land, buildings, trees, sources, trusts, easements etc. ‘Movable property’includes any other property which does not fall under the category of immovable property.

According to section 5 of CAP 195, and the case Kochino v Irfan (1976) 1 CLR 240, irrespective of whether the person has a Cypriot domicile, Cyprus Law:

  • does not regulate any immovable property which is situated outside Cyprus;
  • regulates the immovable property which is situated in Cyprus irrespective of where the domicile of the deceased is found;
  • regulates all the movable property anywhere in the world of the deceased who has a Cypriot domicile

According to section 12 cap 195, succession to movable property of a deceased whose death took place in Cyprus but has another country’s domicile, will be regulated by the country’s law who has its domicile.

Also, it must be noted that the applicable law which regulates the will of the testator is the Law which is in force at the time of his death.

How an individual may distribute his estate?

According to section 21 of Cap 195, a person may distribute his estate in two ways:

  • According to the law of succession, or
  • By drafting a will. A will is a written legal declaration expressing the wishes of the testator regarding the distribution of his estate after his death.

However, it must be emphasized that a testator’s whole estate cannot be distributed solely according to his will. Restrictions are imposed by section 41(1) of Cap 195 on testators in distributing their estate, i.e. “the disposable portion” verified at the day of his death when he has a spouse or children. The rest of his estate, the statutory portion, will be distributed according to Law. The principle regarding the concept of statutory portion is that a substantial part of the estate must be reserved for the closed relatives of the deceased. The rules of the statutory portion are also applicable in cases where there is no will or in cases where a part of the estate is not included in the will.

In cases where the testator distributes more than the disposable portion he is allowed to distribute, then that disposable portion will be reduced and limited down to the portion he is allowed to distribute.

However, there is an exception to this general rule, the concept of statutory portion does not apply to any person who he or his father was born in UK or in most of the Commonwealth countries as they are allowed to dispose the whole of their estate as to their wishes.

How is the disposable portion being calculated?

The disposable portion of the estate of the testator is calculated as follows:

If the testator has any children or descendants of children at the time of his death, the disposable portion is ? of the of the net value of his estate; Korelis & Co. LLC

  • If the testator has no children or descendants of children at the time of his death, but has a surviving spouse or a parent, the disposable portion is ½ of the of the net value of his estate;
  • If the testator has no children, no descendants of children, no surviving spouse or a parent at the time of his death, then the whole of his estate may be distributed according to his will.

How is the statutory portion being distributed? Firstly the portion of the surviving spouse is calculated. According to section 44 the surviving spouse has the right in any given case to receive a share from the statutory portion which is calculated according to the degree of kinship of the rest of the heirs of the testator. If the testator after his death:

  • Has children or any descendants of any children who died while the testator was alive, the surviving spouse and any children or descendants of any children will receive equal shares of the statutory portion of the estate.
  • Has no children or descendants of any children, but has any other relative from the third class of kindred, the portion of the surviving spouse will be ½ of the statutory portion of the estate.
  • Has no children or descendants of any children, or any ascendants or descendants from the third class of kindred, but he has any ascendant or descendant from the 4th class of kindred, the portion of the surviving spouse will be ? of the statutory portion of the estate.
  • Has no relatives from any of the abovementioned classes, then the portion of the surviving spouse will be the whole of the statutory portion of the estate.

Additionally, the law provides (section 45) that the estate which was received by the testator due to a matrimonial agreement is not included in the calculation of the portion of the surviving spouse.

After the portion of the surviving spouse is being calculated, the rest of the estate will be distributed to the rest of the relatives according to their class of kindred. There are four classes of kindred.

The first class includes the children of the testator, descendants of any deceased children who were alive at the time of the death of the testator. Descendants of any living children at the time of the death of the testator are not allowed to receive any share of the portion. The children of the testator will receive equal portions and the descendants of the deceased children will receive the share of those children in stripes. For example, if the testator had three children, two of which were alive at the time of his death but all three had two children, then the two living children will get 1/3 each and the two children of the dead child will get 1/6 each.

The second class includes the parents of the testator or, if the parents are no longer alive then, any closest ascendant who is alive at the time of the death of the testator, or the siblings (half brothers and sisters are also included in this class) or the descendants of the deceased siblings of the testator. The members of this class will receive equal shares of the portion except that the half brothers and sisters will receive half of the share which the siblings will receive. The descendant of the deceased siblings will receive the share of those siblings in stripes.

The third class includes the nearest ancestors of the testator who are alive at the time of his death, i.e. great grandparents, uncle, nephew, great grandchildren. If there are ancestors of the same level of relation from both sides, the mother and the father side of the testator, each side will receive half of the portion of the estate and if there is more than 1 ancestor in each side, they will divide the half portion among them in equal shares.

The fourth class includes the nearest relatives of the testator who are alive at the time of the testator’s death up to the grade of relation of the members of the sixth class (i.e. first cousin, great great grandparents, siblings of grandparents).

It should be noted that the members of one class of kindred cancel out the members of the next class from having a right to receive share of the statutory portion.

Who has the legal capacity to make a will?

In order for an individual to have the legal capacity to make a will he must be of sound mind and be over 18 years old. Both criteria must be satisfied otherwise the will is considered to be void. The concept ‘sound mind’ has a broad meaning; it does not only include people that suffer from a mental disease but also people whose mental health has been affected by advanced age or otherwise. It must be proved that at the material time of the execution of the will, the testator is in a state where he undoubtedly perceives what kind of legal document he signs and what kinds of rights are being derived from that document.

According to the Court, the material time that will be taken into consideration is the date of the execution of the will. The mental status of the testator before or after the execution of the will is irrelevant. A will may be valid even if the testator was not of sound mind before or after the execution of the will.

In practice, it is advisable for medical evidence to be obtained as to the mental state of the testator in order to eliminate any possible doubts for his mental state. In cases though where the mental state of the testator is being questioned; it would also be advisable for his doctor to sign as one of the witnesses of the will and to swear an affidavit at the Court by which he is stating that the will has been executed before him and that the testator was of sound of mind.

What kind of formalities must be complied in order for the will to be valid?

A will must be in full compliance with the following five formalities otherwise is considered to be void:

The will must be signed at the end or at the bottom by the testator. In cases where the testator is unable to sign, he may instruct another person to sign on his behalf at his presence. Also, if the testator is illiterate, then instead of signing the will, he may put his mark or stamp, i.e. fingers prints.

  • The signature of the testator must be witnessed by at least two witnesses who must be present at the time the testator signs the will. It is of great significance that the witnesses have seen the signature of the testator. Even if the will is already signed, the testator is stating that the signature is his and he makes a request to the witnesses to sign as witnesses is considered to be an adequate recognition. It should be noted that the witnesses must be of sound mind and over 18 years old and also, if they are illiterate, they may put their mark or stamp instead of their signature.
  • The witnesses must sign the will at the presence of the testator and of one another. It must be noted that the witnesses do not affirm the content of the will, but they affirm that the testator has signed the will in their presence and that the testator has signed a legal document namely a ‘Will’.
  • If the will consists of more than one sheet of paper, then every sheet must be initialized and the final page signed by both the witnesses and the testator.
  • The will must be in writing. All the above mentioned formalities are compulsory and must be strictly followed. The sole intention of the testator to distribute his estate according to his wishes stated in his will is not sufficient for a will to be valid if at least one of the above-mentioned formalities is not complied with. If the will or part of the will is the result of duress, fraud or misrepresentation then it is considered to be void. The burden of proof lies on the hands of the person who alleged the will was not the result of the free will of the testator and must proof it on the balance of probabilities.

Can a will be revoked?

A will may be revoked by one of the following ways:

  • To draft a subsequent will where it is clearly stated that the previous will is being revoked. If the subsequent will does not comply with the formalities, is considered to be void and the previous remains in force.
  • A subsequent will which revokes only part of the previous will that is not compatible with the former one.
  • If the will is teared, burned or destroyed by the testator or by any other person upon the request of the testator. However, if the will destroyed by any other person without the testator’s request, then the will is not considered to be revoked.
  • If the testator gets married or has children after the execution of the will, the will is considered to be revoked unless he drew up his will considering the possibility of such a marriage or the birth of his children. Additionally, if the testator’s marriage has been dissolved, his will be revoked unless he has reviewed or re executed the will.

A will or part of the will which has been revoked may be revived with the remaking of the will. It is vital for the intention of the testator for the remaking of the will to be present and the revived will to be in full compliance with the formalities and to be in the same form as the previous one.

Are there any tax obligations?

The testator’s will is free of any inheritance tax as the Estate Duty (Amending) Law 2000 has been abolished regarding any person who passed away after the 1st of January of 2000.

GREEK LAW DIGEST Web Portal of the Republic of Cyprus CYPRUS INVEST PROMOTION AGENCY
ΝΟΜΙΚΗ ΒΙΒΛΙΟΘΗΚΗ ΚΥΠΡΙΑΚΟ ΕΜΠΟΡΙΚΟ ΚΑΙ ΒΙΟΜΗΧΑΝΙΚΟ ΕΠΙΜΕΛΗΤΗΡΙΟ CYPRUS BAR ASSOCIATION
     

 

Login

Log in to your account or