Freedom to dispose property by will

Freedom to dispose property by will

by George Coucounis

Siblings are not considered as heirs when the testator disposes his/her property by will

THE freedom of a person to dispose his/her property by will is subject to a restriction concerning the statutory portion to protect his/her family and close relatives, who are his/her children, spouse and parents. The disposable portion is stated in article 41 of the Wills and Succession Law, Cap.195, and the testator can only dispose ¼ of the net value of his/her estate when he/she has a spouse, child, or a descendant of a child, or the ½ of the net value of his/her estate when he/she has a spouse or father or mother but no child nor descendant thereof. The testator can dispose the whole of his/her property to any person he/she wishes without any restriction when he/she has no spouse or child or descendants of a child or father or mother. In the event the testator disposes his/her property by will in a way that exceeds the disposable portion, the will is valid but such disposition will be reduced and abated proportionally so as to be limited to the disposable portion. The testator, if he/she has only a spouse but no parents and children, can dispose of all his/her property to the spouse by will. Siblings are not considered heirs of the testator when he/she disposes his/her property by will.

The issue of succession after the disposition of property by a testator by will and whether the siblings of the testator are recognised as necessary heirs is analysed in the judgment issued by the Supreme Court on 20.7.2021. The case concerned an appeal by a brother, who appealed against the judgment of the Court of first instance not to recognise him as one of the heirs of his deceased brother, who had left a will. The testator died leaving his mother, siblings and nieces and nephews, children of his brother who had predeceased him. The appellant argued that the will was valid as to the disposable portion provided by the Law, i.e. the ½ of the net value of the estate and that he was a lawful heir for the other half, as their mother was alive when the testator passed away. The mother, however, had renounced her inheritance right in favour of the legatees mentioned in the will.

The Supreme Court held that article 41 of the Law establishes two classes of compulsory succession. In the first class belong the descendants and in the second the parents who become necessary heirs when there are no descendants, while the spouse is always a necessary heir. Siblings are not included. The disposable portion, as the Court stated, is limited to narrow kinship frameworks, with its percentage increasing and conversely limiting the power of disposition, depending on how close the dependency is expected to be. Outside of these narrow frameworks, there is no disposable portion, since, if the testator does not leave a spouse, descendants or parents, he/she can freely dispose of all his estate.

The deceased, according to the judgment of the Court, disposed the whole of his estate while there was a restriction in favour of the mother under article 41. Violation of such a restriction does not invalidate the will, but the disposition in excess is reduced and abated accordingly so that to be limited to the disposable portion of the estate. The Court raised the question of whether the statutory portion of the mother, a right which she did not exercise, is extinguished due to her renunciation, or it is retained and can be exercised by the siblings, who together with the mother belong to the second class of the intestate succession. It is a matter of interpretation and the Law first recognises the power of free disposal of property as a right and choice of the testator. This freedom is limited to the extent necessary to protect and support the family in the strict sense, to which the siblings do not belong. This is the general spirit.

The Court concluded that if the mother did not survive her son, he could dispose his estate without any restrictions and therefore the statutory portion concerned only the mother. Since the mother renounced this protection from the Law, the statutory portion lost its meaning and purpose. The fact that the brother could be an intestate heir does not make him a necessary heir and the Supreme Court dismissed his appeal.