Revocation of mutual-mirror wills

By: cyprus-mail.com

Oct 03 2024
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Revocation of mutual-mirror wi

The disposal of a property through a will is similar to 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 beloved persons. The difference between the two is the fact that in the first instance, the testator cannot dispose the whole of their property to whom they wish in excess of the disposable portion defined by the law. On the other hand, a person can dispose the whole of their property by way of a gift to anyone they wish to without any restrictions.

It is natural and reasonable for a person to keep property, movable or immovable, in order to maintain themselves while they are alive, so that they will not be dependent upon the care or charity of others. Consequently, more and more people prefer to dispose their property through a will, feeling that by doing so, they are fulfilling their human duty towards their beloved persons, whether these are close relatives, friends or others.

Mutual-mirror wills

An interesting issue is the one of mutual-mirror wills between spouses without common children, through which one spouse leaves the whole of their property to the other and after the death of the person inheriting, the estate goes to the heirs mentioned in the wills, i.e. children from a previous marriage.

In this respect, an agreement must be made between the spouses, stating that they have agreed to execute mutual wills, with the same date and mutual terms, as well as the fact that they have agreed not to revoke them during their lifetime nor after the death of the other.

Judgment of the Supreme Court

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 them to revoke their will.

In one relevant case, the surviving wife inherited the whole estate of her deceased husband and thereafter executed a new will, revoking the mutual will agreed with her husband. 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The court of first instance decided that the allegations of the heirs named in the mutual will were unfounded, since it was revoked according to the provisions of article 37 of Cap.195, which is the only way a will can be revoked.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 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 English case-law. It is based on the position that a person has the right to bind their estate through an agreement, so that their constitutes 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 their part of the agreement through their death. The second party cannot be released from the agreement on their own, but becomes a trustee in order to enforce the agreement and the mutual will.

Moreover, the court held that mutual wills can be revoked either jointly or separately, provided the party who wishes to revoke must notify the other party of their intention.

However, it is not permitted for any of the parties to revoke their will without informing the other, and the surviving party cannot do so after the death of the other.

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 they 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 Immovable Property Law, based in Larnaca. E-mail: coucounis.law@cytanet.com.cy, tel: 24818288