The ways a will is revoked are stated in the Wills & Succession Law and no will can be revoked solely on the basis of a statement or the behaviour of the testator, even if he is present. A valid revocation of a will must take place according to the directions of the testator, in his presence. The testator through a will expresses in writing his intentions to the deposition of his movable and immovable property after death.
The testator may wish to revoke his will wholly or partially, however the person who undertakes to assist him may not be aware of the requirements of the law or may not comply with the relevant provisions and thus, the intentions of the testator will not be fulfilled. Furthermore, one must take into consideration the fact that the testator may have left a will in the country he habitually resides and another will in the country where he has a holiday house.
A will can only be revoked by: (a) a subsequent will expressly revoking the former one; (b) by a subsequent will inconsistent with the provisions of the former one, but so far only as the provisions of the two wills are inconsistent; or (c) by burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction, with the intention of revoking it. The testator cannot revoke his will through the use of a power of attorney or through a letter.
The issue is quite interesting and was examined by the Supreme Court, whereby the legal principles in the cornerstone case of Kathitziotis were repeated: the provisions of the law are exhaustive and the testator’s intention is not enough to allow the revocation of his will.
The case related to a testator who visited a bank and requested the drafting of a will which was executed according to his wishes. The will was kept at the bank and the testator a few years later visited the bank again to make a new will and revoke the previous one.
The bank followed his directions and a new will was drafted which, however, was not executed according to the provisions of the law, since the two witnesses present subscribed their names only on the second page without initialling the first page.
At the same time, the bank without any further direction or indication by the testator drew two vertical lines on the old will, in between of which they wrote “cancelled” in order to avoid any confusion between the two wills. The impression of the bank was that the testator intended to revoke his old will and execute the new one, an intention expressly stated in the new will.
After the death of the testator, the issue ended up before the court, which decided the new will, signed by the testator, was not valid.
The first will was the one which remained valid, despite the testator’s intention and the contents of the new will, revoking the first one. The fact that the first will was crossed out and the word “cancelled” was written on it did not satisfy the strict requirements of the law for its revocation. Three important events took place in this case: (a) the second will was not valid as it was not executed according to the law and thus, it never revoked the first will, (b) the first will remained valid, and (c) the deceased was not inherited intestate but he died leaving a will, the first one. Despite the testator’s expressed intention to cancel his first will in the subsequent one, the second will was not valid and it could not be considered as a will according to the law and therefore, it could not create any legal effects, including the revocation of the first will.
George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, Tel: 24 818288, www.coucounislaw.com, firstname.lastname@example.org