Each person can legally dispose by will, which is executed in the manner provided by law, all or any part of the disposable portion of his estate, i.e. the movable and immovable property he owns at the time of his death. The Wills and Succession Law, Cap.195, determines both the disposable portion of the estate, which a person can dispose, and the non-disposable portion. The purpose of the legislator is on the one hand to ensure the freedom of the testator to dispose his property as he wishes and on the other hand to protect the members of his immediate family, such as his spouse, children and parents. Siblings are not considered heirs in the event the testator leaves a will and disposes the whole of his property. The disposable portion of the estate through a will depends on the degree of kindred, if there is a spouse or child or a descendant of the child of the testator then it does not exceed ¼ of the net value of the estate. When there is a spouse or father or mother, but no child or a descendant of the child, the disposable portion of the estate does not exceed half of its net value. When there is no spouse or child or a descendant of the child, nor father or mother, the disposable portion of the estate is the whole.

When a person has disposed by will part of his estate which is more than the disposable portion, this disposition is reduced accordingly so that 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 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 in respect of the ½ of the estate and the other ½ of the estate is inherited by the spouse as the non-disposable portion. Therefore, if the surviving spouse leaves siblings or their children, as well as the surviving spouse, the spouse inherits half of the non-disposable portion and the other half is inherited by the siblings or their children according to the share they are entitled to.

One of the issues that the Supreme Court dealt with in a unanimous decision issued on 16.3.2022 on two appeals, concerned the succession of relatives in a case where a spouse left a will by which she disposed all her assets to a legal person while her spouse was alive. The testator disposed by will all her property, movable and immovable, and therefore it was found that the disposition was contrary to the provisions of article 41(1)(b) of the Law, since her husband was alive when she died. It was decided that the question as to which estate could be disposed 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.

The other half of the estate is the non-disposable portion under the Law and therefore, 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. The children were entitled to a share in the non-disposable portion of the estate, i.e. in the ½ of the said portion in equal shares. It was emphasized by the Supreme Court that since the testator left a spouse, there was non-disposable portion, so the provisions of article 44 are activated, through which the said relatives are entitled to a share in the estate and consequently, the share of the spouse is reduced.

Another issue the Supreme Court dealt with was the disposition to a witness attesting the will. The disposition to the extent that it concerns the witness or his 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 of the action that a relation of trust had been created 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.