Introduction

A will is a fundamental component of responsible financial and estate planning. It is a legal document that empowers a person to control the distribution of his assets following his death and to make important decisions regarding his estate. Additionally, by drafting a will, the testator may choose the person who shall be responsible for carrying out the instructions in his will, ensuring that his wishes are fulfilled and that the probate process runs smoothly.

Definition of a will

A will is the legal declaration in writing of the intentions of a testator with respect to the disposal of his movable or immovable property after his death.

Any person who is of sound mind and has completed the age of eighteen years has capacity to make a will.

The testator may indicate in his will the person who shall be responsible for carrying out the instructions in his will, such person shall be named as the executor.

Validity of a will

For a will to be valid certain formalities must be followed i.e.:

  • It must be in writing;
  • It shall be signed at the foot or end thereof by the testator, or by some other person on his behalf, in his presence and by his direction; and
  • Such signature shall be made or acknowledged by the testator on the presence of two or more witnesses present at the same time; and
  • Such witnesses shall attest and shall subscribe the will in the presence of the testator and in the presence of each other, but no form of attestation shall be necessary; and
  • If the will consists of more than one sheet of paper, each sheet shall be signed or initialed by or on behalf of the testator and the witnesses.

Alteration and revocability of a will

It is possible to alter in whole or in part the deposition made by a will prior its execution, provided that such alterations be executed in like manner as the requisites of a will.

Additionally, it is also possible to revoke a will, inter alia, by a subsequent will expressly revoking the former one. Furthermore, a will shall be deemed to be revoked by the marriage of the testator after the execution of the will, or by the birth of a child after the execution of the will, if at the making of the will the testator had no children. Noting however, that such marriage or birth shall not be deemed to revoke a will if it appears upon the face of the will that the will was made in contemplation of such marriage or birth.

Additionally, it is possible to revoke a will by destroying it.

Witnesses to a will

Regarding the witnesses of a will, such persons must have completed the age of eighteen years, of sound mind and able to sign their names.

It is noted that pursuant to the relevant law, legacy to attesting witnesses or to his wife, husband or child shall be, as concerns such person, or wife, husband or child or any person claiming under such person, wife, husband or child, null and void.

Disposable and Statutory portion

The estate is divided into a ‘disposable portion’ and a ‘statutory portion’. The disposable portion can be disposed of as the testator wishes through a will, but the statutory portion is reserved for the widow, children and close relatives of the deceased as per the applicable law.

The right of a person to dispose of his estate by will is not absolute. Such right is limited to the disposition of only one part of his movable property and immovable property which is called “the disposable portion”. Therefore, Cyprus succession law does not recognize an unlimited right to dispose of one’s estate, but a limited right to dispose of by will of only the disposable portion. The disposable portion is being determined by reference to the time of the death and not to the time when the will was drafted.

Furthermore, it should be noted that the disposable portion concerns the net value of the estate i.e. the value of the estate at the time of the death after the repayment of debts, taxes and other liabilities of the legacy.

Having said the above, the disposable portion is defined as follows:

  • Where the Testator leaves a spouse and a child or a spouse and a descendant of a child, or no spouse but a child or a descendant of a child, the disposable portion shall not extend the ¼ of the estate.
  • Where the Testator leaves a spouse or a father or a mother but no child or descendant of a child, the disposable portion under the will shall not extend to ½ of the estate.
  • Where the Testator has no spouse, neither children or grandchildren, nor father or mother, the disposable portion shall be the whole of his estate.

Keeping of the will

A will may either:

  • be filed at the Court’s Registry, pursuant to the provisions of the relevant law;
  • be kept at the office of the testator’s lawyer; or
  • be kept by the testator him/herself or any other person they designate for this purpose.

In case where the will is filed at the Registry, such filing safeguards the safe custody of the will. Save where a testator withdraws his own will, a will so deposited may not be removed from the Registry without the approval of the Court and may not be opened except under such conditions as may be prescribed.

In case where the will is kept by the testator’s lawyer or is being kept by the testator him/herself or any other person they designate for this purpose, it is provided that any person having in his possession or under his control any paper or writing of a deceased person being or purporting to be testamentary, shall forthwith deliver the original to the probate registrar of the Court. If any person fails to do so for fourteen days after having had knowledge of the death of the deceased, he may be liable to a fine.

It is noted that when a will is opened, copies can be delivered to interested parties on payment of the prescribed fees.

Applicable law to the succession of the estate of the deceased

In order to decide whether Cyprus laws on inheritance will apply to the estate of a deceased, one must establish the domicile of the deceased, as per the relevant Cyprus legislation.

Every person has at any given time either the domicile of origin (i.e., the domicile received by him at his birth) or the domicile of choice (i.e., the domicile – not being the same as the domicile of origin- acquired or retained by him by his own act).  A person acquires a domicile of choice by establishing his home to a place, with the intention of permanent or indefinite residence therein.

The Cyprus law on inheritance shall apply in relation to the succession of the movable property, wherever it is situated and all the immovable property in Cyprus of a person domiciled in Cyprus.

The succession to immovable property shall be governed by the “lex loci rei sitae” (by the laws of the place where the immovable lies), irrespective of the domicile of the deceased. Thus, immovable property within Cyprus shall be governed and regulated by the Law, irrespective of the deceased’ s domicile at the time of his death.

The succession to movable property of persons dying in Cyprus but not domiciled there shall be regulated by the law of the country in which they had their domicile at the time of their death.

Regulation (EU) 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession

It should be noted that in relation to the estate of individuals who died on or after 17 August 2015, the Regulation (EU) 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (“Brussels IV”) shall apply.

The scope of Brussels IV is to include all civil-law aspects of succession to the estate of a deceased person, namely all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession.

Brussels IV applies in relation in all EU member states except Great Britain, Ireland and Denmark, which opted out of the Regulation.

Pursuant to Brussels IV the courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole. However, it is possible where the person has chosen to govern his succession by the law of his nationality, then a court or the courts of that Member State are to have exclusive jurisdiction to rule on any succession matter.

As concerns the applicable law, Brussels IV provides that the law applicable to the succession as a whole shall be the law of the state in which the deceased had his habitual residence at the time of death. However, where it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a state other than the state having his habitual residence, then the law applicable to the succession shall be the law of that other state. Additionally, it is possible for a person to choose as the law to govern his succession as a whole, the law of the State whose nationality he possesses at the time of making the choice or at the time of death.

Conclusion

In navigating the complexities of inheritance laws, it is crucial to recognize that each case is unique. Therefore, seeking professional advice is strongly recommended to ensure that one’s wishes are not only documented but also legally sound, providing peace of mind for both the testator and their beneficiaries.

For further information or advice contact our team at info@papakyriacoulaw.com