11.04.2022
The disposition of a will is regulated by law to protect the next of kin of the testator.
A person may legally dispose of all or any part of the disposable part of his property, that is, movable and immovable property that he owned at the time of death, by will, which is drawn up in the manner prescribed by law. The Wills and Inheritance Act, Chapter 195, defines the disposable and non-distributable portion of property.
The legislator ensures the freedom of the testator to dispose of his property at his own discretion and protects his immediate family, such as spouse, children and parents. Brothers and sisters are not considered heirs if the testator leaves a will disposing of all their property.
The disposable part of the inheritance under the will depends on the degree of kinship, in the presence of a spouse, child or descendant of the child of the testator, it does not exceed one quarter of the net value of the inheritance. When there is a spouse, father or mother, but no child or descendant of the child, the disposable portion of the property does not exceed half of its net worth. In the absence of a spouse, child, descendant of a child, father or mother, the disposable part of the property is everything.
When a person has disposed by will of a part of his property that exceeds the disposable part, this disposition is correspondingly reduced in order to be limited to the disposable part, without affecting the validity of the will. A problem can arise when spouses without children or parents make a will and dispose of all their property without any disposition to the other spouse. The surviving spouse, although not listed as an heir in the will, has the right to inherit; the will is valid only for half of the property. The other half of the property is inherited by the spouse as an immovable part.
On March 16, the Supreme Court delivered unanimous decisions on two appeals concerning the inheritance of relatives.
The wife left a will in which she left all her property to a legal entity while her husband was alive. The testator disposed of all his property, movable and immovable, by will, and therefore it was found that such a disposition was contrary to the provisions of section 41(1)(b) of the law.
It was decided that the question of what property can be disposed of by will is decided at the time of the death of the testator. Since the husband was still alive at the time of the death of the decedent, the will was valid, but the will made to a legal entity should not exceed half of the net value of the inheritance.
In addition to her surviving husband, the trial court correctly found that the children of her deceased brothers and sisters were also her heirs, entitled to a share of the non-disposable part of the property. The Supreme Court emphasized that since the testator left the spouse, the provisions of section 44 come into force, according to which the said relatives are entitled to a share in the inheritance and, therefore, the spouse’s share is reduced. Another issue that the Supreme Court considered was the order for a witness to certify a will. An order to the extent that it concerns a witness, their spouse or child is void. In the specific case, the order was issued to a legal entity, but there was no reference in the pleadings to a trust relationship between the testator and a witness related to the legal entity. Consequently, the court did not address this serious issue and dismissed the complaints.
George Coucunis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants
