Freedom to dispose of property by will

Siblings are not considered heirs when property disposed of by will

The freedom of a person to dispose of their property by will is subject to a restriction concerning the statutory portion to protect family and close relatives. The disposable portion is stated in article 41 of the Wills and Succession Law, Cap.195, and the testator can only dispose a quarter of the net value of their estate when they have a spouse, child, or grandchild, or half of the net value when they have a spouse, father or mother but no child. The testator can dispose of their entire property when they have no spouse, child, father or mother.

If a testator disposes of their property by will in a way that exceeds the disposable portion, the will is valid but the portion will be reduced and abated accordingly. If a testator, only has a spouse, they can leave all property to the spouse. Siblings are not considered heirs.

These issues are analysed in a judgment issued by the supreme court on July 20. The case concerned a brother, who appealed against the judgment of the court of first instance not recognising him as an heir of his deceased brother, who had left a will. The testator died leaving his property to his mother, siblings, nieces and nephews (children of his brother who had predeceased him). The appellant argued that the will was valid as to the disposable portion provided by law, ie half of the net value of the estate, and that he was a lawful heir for the other half, as their mother was alive when the testator passed away. The mother, however, had renounced her inheritance right in favour of the legatees mentioned in the will.

The supreme court held that article 41 of the law establishes two classes of compulsory succession. In the first belong the descendants and in the second the parents who become necessary heirs when there are no descendants, while the spouse is always a necessary heir. Siblings are not included. The disposable portion, as the court stated, is limited to narrow kinship frameworks, with its percentage increasing and conversely limiting the power of disposal, depending on how close the dependency is expected to be. Outside of these narrow frameworks, there is no disposable portion, since, if the testator does not leave a spouse, descendants or parents, they can freely dispose of all his estate.

The deceased, according to the judgment of the court, disposed the whole of his estate while there was a restriction in favour of the mother under article 41. Violation of such a restriction does not invalidate the will, but the disposal in excess is reduced and abated accordingly. The court raised the question of whether the statutory portion of the mother, a right which she did not exercise, is extinguished due to her renunciation, or is retained and can be exercised by the siblings, who together with the mother belong to the second class of the intestate succession. It is a matter of interpretation and the law first recognises the power of free disposal of property as a right and choice of the testator. This freedom is limited to the extent necessary to protect and support the family in the strict sense, to which the siblings do not belong. This is the general spirit.

The court concluded that if the mother had died before her son, he could dispose his estate without any restrictions and therefore the statutory portion concerned only the mother. Since the mother renounced this protection from the law, the statutory portion lost its meaning and purpose. The fact that the brother could be an intestate heir does not make him a necessary heir and the supreme court dismissed his appeal.

George Coucounis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants, email: [email protected]          `