Disposition by will is regulated by law for the protection of the immediate family of the testator
A person can legally dispose of all or any part of the disposable portion of their estate, ie the movable and immovable property they own at the time of death, by will, which is executed in the manner provided by law. The Wills and Succession Law, Cap.195, determines the disposable and the non-disposable portion of the estate.
A legislator ensures the freedom of the testator to dispose of their property as they wish and protect the members of their immediate family, such as their spouse, children and parents. Siblings are not considered heirs in the event the testator leaves a will disposing of the whole of their property.
The disposable portion of an estate through a will depends on the degree of kindred, if there is a spouse, child or descendant of a child of a testator then it does not exceed one quarter of the net value of the estate. When there is a spouse, father or mother, but no child or descendant of a child, the disposable portion of the estate does not exceed half of its net value. When there is no spouse, child, descendant of a child, father or mother, the disposable portion of the estate is the whole.
When a person has disposed by will of part of their estate which is more than the disposable portion, this disposition is reduced accordingly so as to be limited to the disposable portion, without this affecting the validity of the will.
An issue may arise when spouses without children or parents make a will and dispose of all of their property without any disposition to the other spouse. The surviving spouse, although not mentioned as heir in the will, has an inheritance right; the will is valid only with respect to half of the estate. The other half of the estate is inherited by the spouse as the non-disposable portion.
On March 16, the Supreme Court issued unanimous decisions on two appeals, concerning the succession of relatives.
A spouse had left a will in which she left all her assets to a legal person while her spouse was alive. The testator disposed of all her property, movable and immovable, by will and therefore it was found that the disposition was contrary to the provisions of article 41(1)(b) of the law.
It was decided that the question as to which estate could be disposed of by will is ascertained at the time of the testator’s death. Since the husband was still alive at the time of the testator’s death, the will was valid, however the disposition made to the legal person should not have exceeded half of the net value of the estate.
Apart from the surviving husband, it was correctly found by the court of first instance that the children of her predeceased siblings were also her heirs, entitled to a share of the non-disposable portion of the estate. It was emphasised by the Supreme Court that since the testator left a spouse, the provisions of article 44 are activated, through which the stated relatives are entitled to a share of the estate and consequently, the share of the spouse is reduced.
The other issue the Supreme Court dealt with was disposition to a witness attesting a will. The disposition to the extent that it concerns the witness or their spouse or child is invalid. In the particular case, the disposition was made to a legal person, but there was no reference in the pleadings to a relationship of trust between the testator and the witness who was related to the legal person. Consequently, the court did not examine this serious issue and dismissed the appeals.
George Coucounis is a lawyer practising in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]