16 Apr Proper execution of a will
Proper execution of a will
by George Coucounis
A will contains the written declaration of a person in accordance with the law for his intention regarding the disposition of his movable or immovable property after his death and includes a codicil. Therefore, in order for a document to be considered a will, the formalities required by law must be observed, otherwise the will is not valid. Article 23 of Cap.195 provides that no will shall be valid unless it is in writing and executed in the following manner: (a) 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 (b) such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and (c) 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 is necessary, and (d) if the will consists of more than one sheet of paper, each sheet shall be signed or initialled by or on behalf of the testator and the witnesses.
The correct execution of the will is important, since from the observance of the formalities of the law the testator will be inherited according to his last will in respect of the disposable portion of his assets which he can dispose of with the will. A testator’s heirs often challenge the validity of his will, especially when the testator has no first-degree relatives, is elderly and in poor health due to mental or physical illness, and the legatee is another person. In a unanimous decision issued by the Supreme Court on 7.9.2020, the Court points out that the burden of proving the proper execution of a will lies on the shoulders of the person who presented it for probate. The dispute tried by the Court of first instance concerned the alleged will of an 86-year-old deceased testator, in which the defendant was named as a legatee and the executrix. The testator’s heirs filed a caveat and then a lawsuit, claiming that the will was invalid because it had not been drafted in accordance with the provisions of the law and that the testator was not of sound mind, he did not act with his free will, suffering from mental and physical illness and thus he was not capable of making a will.
The Court of first instance decided that the testator was capable of making a will and therefore, the burden of proving that the will was not properly and lawfully executed lied on the shoulders of his heirs and dismissed their action. The Supreme Court disagreed with the first-instance judgment, indicating that the defendant executrix of the will did not summon at least one of the attesting witnesses, nor did she give any explanation for their absence. The Court stressed that where the authenticity of a will is questioned in the context of a dispute regarding probate, the summoning of at least one attesting witness is necessary. On the other hand, when there is no dispute and the will is proved before the competent registrar, if it is correct in type and contains a proper attestation clause, it can be proved only by the executor’s affidavit. The Court added that the obligation to summon at least one witness is overcome only when the witnesses are not available, if for example they passed away or they cannot be found and a satisfactory explanation in given in court. In such a case, any person who was present and saw the execution of the will can be summoned as a witness.
The Supreme Court concluded that in the present case, due to the failure of the executrix to summon at least one attesting witness or to give satisfactory explanation, the Court of first instance did not rule correctly with reference to regularity that the executrix had been released from the burden of proving proper execution. Moreover, its ruling on the issues of capability and undue influence is doubted, since it could be determined by what the attesting witness might have testified. As long as the person who had the burden to prove the validity of the document as a will failed to do so, both its probate and the granting of letters of administration