THE disposal of a property through a will is similar to the disposal of a property by way of a gift during one’s lifetime, an act which demonstrates the love and affection of the testator to his inheritors. The difference between the two is that in the first instance the testator through a will cannot dispose the whole of his property to whom he wishes in excess of the disposable portion defined by the law. On the other hand, a person can dispose the whole of his property by way of a gift to anyone he wishes to without any restrictions.
It is natural and reasonable for a person to keep property, movable or immovable, to finance himself while he is alive. Maintaining or keeping property is preferable since, if it is disposed, it changes hands and afterwards it belongs to others. Consequently, more and more people prefer to dispose of their property through a will, feeling that by doing so they are fulfilling their human duty towards their loved ones, whether these are close relatives, friends or others. An interesting issue is mutual- mirror wills between spouses without children, through which the one disposes to the other the whole of his movable and immovable property and that after the death of the person inheriting the other, the estate will be given to the heirs mentioned in the wills.
In this respect, an agreement must be made between the spouses expressed in the wills, stating that they have agreed to execute mutual wills, with the same date and mutual terms, as well as that they have agreed not to revoke them during their lifetime nor the surviving spouse after the death of the other. A question is raised whether such wills are valid according to the law and whether their contents bind the surviving spouse and do not allow him to revoke his will.
The issue was examined by the Supreme Court in a recent judgment, which decided the revocation of a mutual will through the execution of a new will was not valid. In particular, the surviving wife inherited the whole estate of her deceased husband and thereafter she executed a new will. Certain persons were named in the mutual will as heirs, however in the new will another heir was added. The court of first instance decided that the allegations of the heirs named in the mutual will were unfounded, since it was revoked according to the provisions of article 37 of Cap.195, which is the only way a will can be revoked.
It added that their allegations of mutual wills as a legal term are not known in the Cyprus Law and that the deceased wife did not hold her estate, including the one inherited from her husband, in trust to be used according to the mutual will. The Supreme Court disagreed and stated that the doctrine of mutual wills as a rule of law has been recognised, established and supported by the English case-law. It is based on the position that a person has the right to bind his estate through an agreement, so that his will to constitute a trust for the execution of the said agreement. The terms of the mutual will constitute proof of such an agreement and the person who dies first, executes his part of the agreement through his death.
The second party cannot be released from the agreement on his own, but he becomes a trustee in order to enforce the agreement and the mutual will. Based on the common law and the principles of equity, the Supreme Court decided that the execution of a new will does not release the testator from the agreement he entered into through mutual wills. Hence, the new will was declared null and void and the mutual will was the only one enforceable.
George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, Tel: 24 818288, [email protected], www.coucounislaw.com
