10 Feb Execution of a will by a disabled person
Execution of a will by a disabled person
by George Coucounis
“The testator can put his fingerprint on the will or directs another person to sign on his behalf’’
A disabled person who cannot sign a will because of a physical disability, such as paralysis of the muscles or who is blind or illiterate but is mentally sound, has every right and can execute his will and dispose of his property as he wishes, with the limitation as to the disposable portion. The best way is for this person to express his wish and ask a lawyer of his choice to draw up his will as prescribed by law. It is desirable in this case to request the issuance of a Court’s order directing the Registrar to visit the testator at his place and be present during the execution of the will. The Registrar, after being satisfied that the testator can execute a will and that he acts freely without any undue influence, ensures that the will is read to him in the presence of two witnesses over the age of 18, and that the testator understands and agrees with its content. The testator then places his fingerprint or, if unable due to physical disability, he directs another person to sign on his behalf, but always in the presence of the two witnesses who sign the will as attesting witnesses.
The Registrar receives the will and places it in a Court’s envelope, it is signed by both himself and the person who signed on the testator’s behalf, the next day files the will in the Court’s register and keeps it in the safe. Article 23 of the Wills and Succession Law, Cap.195, regarding the requisites of a will provides the following. No will shall be valid unless it shall be in writing and executed in the manner hereafter mentioned, that is to say – (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 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 shall be 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 validity of the will of a disabled person who suffered from paralysis of the muscles and executed a will was challenged by his relatives to whom he did not dispose of any property. A lawsuit was filed to declare the will null and void and that it was executed following the exercise of undue influence by the heirs named in the will. The testator executed his will at the presence of his lawyer whom he instructed to draft it. The Registrar was also present following an order of the Court, to ensure the legality of the execution of the will. It was established that the testator was mentally healthy, understood everything and freely expressed the desire to execute a will. Present at the same time were the lawyer and the two witnesses, one of whom was the Registrar; the will was executed according to the provisions of the Law.
The dispute between the relatives was resolved by the District Court of Larnaca in the decision issued by the Senior Judge Mrs. E. Georgiou – Antoniou on 6.2.2023. She decided that no fault was found in the execution of the will, to the contrary, the contested will was duly drawn up, executed and the four conditions of Article 23 of the Law were met. The will was legally drawn up and there is in it the relevant type of confirmation for the reason that it was signed by another person who acted for the testator and by his direction. The Court decided that there is also the signature of the attesting witnesses and that the signatures on it are as provided by the Law. In this way, the presumption of due preparation and regularity of the will is fully applied.
Furthermore, the Court stated that it was not a question of a suspicious will because of the way it was chosen the will to be signed. The reasons for this were explained to the Court by the witnesses who were present, including the Registrar of the Court. The signature of the person who acted on the direction of the testator was placed before him and the two witnesses were present at the same time, in accordance with the existing legislation. In relation to the testator’s mental condition, nothing was found to undermine his mental health. The testator had full control of the state of his mind, he was aware of his actions and fully aware of his legal action he was taking and the consequences thereof. The Court concluded that no one coerced the testator or exercised any undue influence, pressure or persuasion on him to act as he did. The will was found to be valid, and legal, and was executed following the exercise of the testator’s free will. Therefore, the Court dismissed the lawsuit and issued a judgement on the counterclaim for the validation of the will.