Court dismissed will challenge, holding mandatory execution rules apply and burden of proof rests on challengers.

[*337] 1972 May 31

(STYYLANIDES, AG. P.D.C. CHRYSOSTOMIS, AG. D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Charalambos Georghiou Giorghourou and 10 others,

Plaintiffs,

And

Antonios

P. Anastassiades and 5 others,

Defendants.

(Action No. 2114/69).

Will - Formalities of will - Provisions of section 23 of the Wills and Succession I-aw, Cap. 195 mandatory and not merely directory

- Due execution – Burden of proof - It rests on the person setting up the will

– Attestation - Diverse versions by attesting witnesses -- Version of witness tending to prove due execution preferred.

Will - Capacity of testator -- Undue influence - Burden of proof - on the party alleging it - Relationship of husband and wife - No presumption of undue influence - Husband's will benefiting wife and another legatee to the detriment of husband's blood relatives - No evidence that wife had power to overbear will of husband - Plaintiffs failed to discharge burden cast on them.

Will – Testator’s knowledge and approval - Burden of proof - On the party setting up the will - And is discharged by proof of capacity and due execution.

Will - Disposable portion - Disposition of whole of estate by testator who left spouse only - Does not invalidate will - Section 41(1)

(b) and (2) of the Wills and Succession Law, Cap. 195.

Will - Legacy to Adventist Church of the 7th Day - Validity - No evidence regarding nature, existence and legality of legatee - Court unable to pronounce on validity or not of legacy.

A. Neocleous with P, Demotriou, for the Plaintiffs.

Defendant 1 in person.

A. Anastassiades with P. Artemis, for Defendant 2.

A. Ivorfiotis, for Defendants 5 & 6.

JUDGMENT

The judgment of the Court was delivered by-

STYLIANIDES. AG. P.D.C.: At the dawn of this [*338] century at the remote village of Pyrghos Tyllirias, Charalambos Stelliou Koskinides was born. Poor and destitute, at the age of 13 he emigrated to the neighbouring country of Egypt to earn his living and probably with the ambition to make a fortune. There he worked hard, he married Defendant.2 and he was converted to Adventism. On 27.9.68 his life came to an end.

On 5.3.69 Antonios P. Anastassiades, an advocate of Limassol, Defendant 1, by Probate Application 40/69 applied for probate of the last will and testament of the said Koskinides which was deposited by the deceased on 14.10.65 at the Registry of the District Court of Limassol. By the said will the deceased testator shared his property to his wife and the church of the Adventists of the 7th Day and left small amounts to his brothers Savvas, Phylachtis and the children of his predeceased sisters, Eleni and Kyriakou.

On 27.8.69 Charalambos Georghiou Georghouros, Sawas Koskinides, Phylachtis Koskinides, Sotiris Georghiou Georghourou, Eleni Kyriakou, Spyros Kyriakou, Georghia Andreou and Andreas Georghiou Georghourou entered a caveat.

Eleven of the lawful heirs of the deceased filed this Action impeaching the will on the following grounds as set out in the Statement of Claim: -

(a) That the will is not a valid will in solemn form and in conformity with the Law.

(b) That the said will v/as., obtained by the -undue influence of the deceased’s wife, Defendant 2. [*339]

(c) That the testator did not know and did not approve or understand the contents of the said will.

(d) That the will is void as the Adventist Church of the 7th Day is not a legal person in Cyprus and/or is not recognized in this country.

(e) The testator disposed of, by the said will, all his movable and immovable property of which he was possessed contrary to the provisions of S.41 of the Wills & Succession Law, Cap. 195.

Particulars of grounds (a), (b) and (c) were given in the Statement of Claim as provided by Rule 42 of the Administration of Estates Rules, 1955.

Defendants 1 and 2 resisted and denied the claim. Defendant 1 by counterclaim claimed pronouncement of the validity of the said will and a decree of probate of the said will as he is the named executor in the will.

Defendants 5 and 6 admitted the claim and actually lined up with the Plaintiffs.

1. Formalities of the Will

The requisites of a valid will are given in S.23 of the Wills & Succession Law, Cap. 195 which reads: -

"No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned, that is to say: - [*340]

(a) it shall he 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 he 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 ether, 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 provisions of S.23 are mandatory and not merely directory. (Pavlides v. Potamitis, 9 C.L.R. p.119; Anastassis Charalambous & Others v. Alkis Demetriou & Others, (1961) C.L.R. p. 30).

In Charalambous v. Demetriou (supra), Zekia, J., as he then was, said: -

"In S.23 it is expressly stated that a will shall not be valid unless it conforms with the requirements mentioned therein. The consequences of non-compliance having been clearly stated in the statue, that is [*341] having the effect of invalidating the will, there leaves no room for doubt as to the intention of the legislator that the requirements in the said section were meant to be imperative and not directory."

Triantafyllides, Ag. J. As he then was, had this to say at p. 39: -

"Unfortunately by means of the definition of ’Will’ in S, 2 of Cap. 195, the Wills & Succession Law, and of the rigid wording of S. 23 of the same law, a procrustean legal framework has been created to which, no matter what the collateral circumstances, a will has to be fitted, otherwise it cannot survive a Court of Law."

The burden of proving due execution, whether by presumption or by positive evidence rests on the person setting up the will. (Clery v. Barry (1887) 21, L.R.Ir.152).

The will is before us; it is in the file of rebate Appl. 40/69, Exh. 1. It consists of one sheet and' it bears the signature of the testator at the 'foot 'thereof. There is an attestation clause thereunder, and then follow the signatures of two attesting witnesses, viz.: Yiannakis Neophytou, D.W. 1 and Demetrakis Papapetrou, P.W.4.

Demetrakis Papapetrou is today 29 years old; he is a graduate of the Lanitium Gymnasium and from the beginning of 1963 until the 15.6, 64, when he joined the National [*342] Guard, he was a junior registered advocate s clerk of Mr. Anastassiades, He served in the National Guard from

15.6.64 to 4.11.65.

Yiannakis Neophytcu has been the registered advocate’s clerk of Mr. Anastassiades for the last 19 years; he was the senior clerk in the said office.

Papapetrou, during his service in the National Guard on very rare occasions, 4 - 5, whilst on leave, visited the Law “office of his advocate. After his release from the army he worked at the same office from November 1965 until January 1966 when his employment was brought to an end, obviously due to frolics of his youthful age, though Mr. Anastassiades provided him with a certificate of good character, Exh. 4. He was for 2 years the clerk of another advocate, namely Mr. Koumas. Since 1968 he has been the clerk of one of the advocates of the Plaintiffs.

The attestation clause states that the requirements of the law have been complied with.

The principle ’omnia praesumuntur rite esse acta’ applies where the will is regular on the face of it, with an attestation clause and the signatures of the testator and witnesses in their proper place. (Vinnicombe v. Butler (1864) 3, W. &. Tr. 580 at p. 582 per Sir J. Wild; in the estate of Musgrove, Davis v. Mayhew, (1927) p. 264).

This presumption found its way in the Administration of Estates Rules 1955- Rule 12 (2) reads as follows: [*343]

"If the will appears to be so signed and subscribed the probate Registrar shall then refer to the attestation clause (if any), and consider whether the wording thereof states the will to have been, in fact, executed in accordance with those enactments."

The record in the memorandum of attestation of the observance of all the circumstances which the statute makes necessary to' constitute a valid execution, (i.e. that the signature was made, or acknowledged by the testator in the presence of the witnesses, present at the same time, and that they, subscribed their names in the presence of the testator and in the presence of each other), though not conclusive and does not preclude inquiry into the fact, it affords a strong presumption that the statutory requisition had been complied with.

It may be rebutted by evidence of the attesting witnesses, but the evidence, as to some defect in execution, must be clear, positive and reliable.

In the present case the attestation is perfect. It is a verbatim reproduction of the attestation clause, provided by S.22 of the Wills & Succession Law of 1895, which obtained in this country until 31.8.45. By virtue of that section this attestation clause was obligatory.

The two attesting witnesses gave two diverse versions. [344]

Papapetrou, P.W. 4, states that on 14.10.65 he was on leave and as he was always doing, he visited the law office of Mr. Anastassiades, where he stayed for one or two hours. Yannakis, D.W.1, asked him to put his signature on a document as a witness and then he signed. He did not know the nature of the document he was attesting. He did not read the document. The only persons present were Yannakis and Mrs. Anastassiadou; he did not know and did not' see the testator. He did not remember if the stamps and the other signatures were on the document. No other person signed this will in his presence. Yannakis simply asked him "Sign here as a witness'' and he complied. Though the document was open, not folded, he did not even notice the word ’DIATHETIS' typed in capital letters.

He insisted that he only attested one document on 14.10.65. When, however, he was confronted with the will of Arghyro Koskinidou, which was executed on the same day, he identified his signature and admitted that he attested this will also.

He did not remember the approximate time he subscribed this will, did not remember, if on any of his 4 -5 visits to Mr. Anastassiades's office he placed his signature on any document. He did not remember what he did on those visits. He did not remember if he attested any document on the first occasion. He did not remember if on other occasions he looked at the documents he signed as subscribing witness. He did not remember if D.W.1, Yannakis, accompanied Mrs. Koskinidou to the Court. [*345]

His version is simple: he placed a signature on a ’document' at the request of D.W.1. He made no mention of it to anyone. Some four years later, when this Action was instituted, he was asked: "Did you sign this will?" and he replied: "probably I signed; it is my signature, I must have signed it." Later on, however, he stated in his evidence that he saw his signature on the will, subject matter of this Action, for the first time since the 14.10.65 on the day he was giving his evidence before.

When, it was put to him that his memory fails him, he replied: "I cannot remember."

The other attesting witness is Yannakis Neophytou; he is an experienced advocate’s clerk; he knew the testator and his wife well; he had helped them in lending out their money on the security of mortgages.

On the eve of the date of the will he arranged an appointment for the 14.10.65 with the testator and his wife. On the date of the will he received the instructions, from the testator and drafted the will. He described how the will was typed, read over to the testator in the presence of P.W.4 Papapetrou. The testator understood and approved the contents thereof, which were in accord with the testator's instructions. The testator signed in the presence of both attesting witnesses who subscribed the will in the presence of the testator and in the presence of each other. The will was in form executed as per the attestation clause. [*346]

Then the will of Arghyro Koskinidou was executed in the same form. Thereafter this witness accompanied the testator to the Probate Registrar of this Court for the deposit of the will. On the sealed packet containing the will under consideration, this witness swore the affidavit provided in Rule 3(2) of the Administration of Estates Rules, 1955.

This witness underwent lengthy and vigorous crossexamination; it was submitted that he had an interest in the matter, i.e. his prestige was at stake. It is significant, however, that the following self-contradictory questions were put to this witness by Plaintiffs - Counsel:-

Q. "I put it to you that when Mr. Koskinides signed, you signed as an attesting witness and then you invited Mr. Papapetrou in and told him, without Mr. Koskinides being present: 'this is the ' signature of Mr. Koskinides and place your ’ signature'."

And, further down:-

Q."I put it to you that Mr. Papapetrou attested the will before it was signed by the testator."

We heard and observed both witnesses. P.W.4 Papapetrou did not impress us at all. To say the least, we entertained serious doubts for his recollection. Human memory is weaker than the witnesses assert in Court. The memory of this witness failed him. On almost all matters [*347] except on that which is material for the determination of this issue. His evidence is evasive in all other respects; his memory is, in our judgment, faulty.

"In a contested action the Court will scrutinise the evidence of an attesting witness which tends to prove absence of due execution with great care, and, if his recollection is faulty or negative, or if he shows any hostile animus, will be disposed to put his evidence aside and act on the presumption that the will is good."

(Blake v. Knight, (1843) 3 Curt. 547;

Wright v. Sanderson (1884) 9 P.D.149,

C.A, at p. 160, per Lord Selborne).

We have given serious consideration to the evidence of this young man and in our judgment it is neither positive nor reliable. We accept the evidence of D.W.1, Yannakis Neophytou. Even if the positive evidence of Yannakis Neophytou were missing, the testimony of P.W.4, Papapetrou is such that we would not believe that a will with a perfect attestation clause and signed by the testator was not duly executed.

We are satisfied that the will, Exh.1, in form fully satisfies the requisites provided by our Law.

1. Undue influence

In Section 2 of the Wills & Succession Law, Cap. 195, "undue influence" is defined: [*348]

“‘Undue influence’ means the exercise by a person of influence to dominate the will of another person where the relations subsisting between them are such that one of them is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other."

The person propounding a will has to prove that a will has been executed with due solemnities by a person of competent understanding, and apparently a free agent. The burden of proving, that it was executed under -undue influence is on the party who alleges it. (Barry v. Butlin, (1838)

2 Moo. P.C. 480; Boyse v. Rossborough (1843-1860) All E.R. (Rep,) 610).

Influence, in order to be undue within the meaning of any rule, of law which would make it sufficient to vitiate a will, must be an influence exercised either by coercion or fraud.-. The conduct of a person in vigorous health towards the one feeble in body, even though not of unsound mind, may he such as to exercise terror and make him execute as his will an instrument which, if he had been free from such influence, he could not have executed. (Boyse v. Rossborough (supra)).

Undue influence cannot be presumed. The mere proof of the existence of the relation of husband and wife does not raise a presumption of -undue influence sufficient to vitiate a gift by will. (Parfitt v. Lawless (1878) L.R.2.P & D.462). [*349]

Plaintiff 1, P.W. 2, Ioannides the Chairman of the Village Committee of. Pyrghos, P.W. 3, and Defendant 5, testified on this issue for the blood relatives who impeached the will.

The deceased married his wife, Defendant 2, some 40 years prior to his death. The marriage was childless hut harmonious. The relations of the couple were good. They lived in Egypt hut almost regularly during summer they visited Cyprus. They stayed at Platres, a summer resort in this District. The deceased, unaccompanied by his wife, used to travel to his native village, Pyrghos, in order to visit his blood relatives, and he used to stay in the house of his brother, Defendant 5. He was not estranged from his relatives.

Some ten years before, his death he suffered a stroke attack; one of his sides was badly affected and he could walk only -short distances unaided. (Vide evidence of P.W.2, Georghouros and P.W.3, Ioannides). Even thereafter he did not cease going to Pyrghos.

At his invitation Defendant 5 travelled to Egypt where hospitality was extended to him by the deceased and his wife. This witness stated that the wife had the upper hand and in support he mentioned that he lost £10 and the deceased was about to give to him an equal amount; the wife objected, saying: "Let him work and earn the money". Nevertheless the deceased was not influenced by the remark of his wife and handed.to the witness the £10. This. [*350] insignificant incident not only does not support the case for the Plaintiffs hut, on the contrary, it disproves it. The testator was exchanging letters with Defendant 5 until 1967.

It was deposed that the testator could not even dress himself and was thus in the hands of his wife, feeble and miserable, relying on her. The whole evidence, however, before us depicts a picture of a devoted couple.

P.W. 1 and Defendant 5 had but only very limited opportunities to observe the life of this couple and their evidence is vague and unsatisfactory.

The testator was converted to Adventism when he was in good health. There is no evidence before us which of the two, the testator or his wife, followed that creed first. It is clear from the evidence of the Chairman of the Village Committee of Pyrghos, P.W.3, that, the deceased was preaching adventism and distributing literature of that church long before he suffered the stroke. Indeed, he was so devoted, to this revelation that he tried to allure Defendant 5 to adventism by offering to him half of his property.

On 14.10.65, the date of the will under consideration, the wife executed a will of her own whereby she disposed of the whole of her property. A copy of that will is Exh.2 before us. A perusal of the two wills, that of the deceased testator and his wife, points, unequivocably that the two-persons bequeathed their property to the other partner and to their common church, except for some small [*351] amounts which they left to their respective relatives. Indeed, in substance, they are mutual wills.

The evidence for the Plaintiffs and Defendant 5 does not relate to the time of the execution of the will. It does not even by inference establish that this will was executed by the testator in compliance with threats or commands of his wife or that he was led to execute it by unfounded prejudices instilled into his mind by his wife against those who would otherwise have been the probable objects of his bounty.

There is no evidence that the wife had the power to overbear the will of her husband. Even if the power to overbear the will of the testator is admitted, it must be shown that such power was exercised and that the circumstances of the execution are inconsistent with any other view but undue influence. (Graig v. Lamourex (1920) A.C.349; Panayiota Mossaikou v. Zahra Eren, 23 C.L.R. p.286 at P.291).

The Plaintiffs failed to discharge the burden cast on them.

On the totality of the evidence before us we find that the instrument propounded is a product of the free exercise of the testator's judgment.

3. Knowledge and Approval.

The Plaintiffs raised up this plea as they are entitled under Rule 42(5) of the Administration of Estates Rules. In that rule we read that any party pleading [*352] this plea shall therewith, (unless otherwise ordered by the Court) deliver to the adverse parties and file in the Registry, particulars in writing, stating shortly the substance of the case he intends to set up thereunder. These particulars are set out in Paragraph 9 of the Statement of Claim under the heading "Substance of the Case".

The burden of proof of a testator’s knowledge and approval lies on the party setting up the will and the burden is discharged prima facie by proof of capacity and due execution. (Cleare v. Cleare (1869) 1 P & D, 655)."

Parker B., in delivering the advice of the Privy Council in Barry v. Butlin (supra), had this to say: -

"The onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator."

At p. 484 he explained that the onus "is in general discharged by proof of capacity, and the fact of execution, from which the knowledge and assent to the contents of the instrument are assumed."

The capacity of the present testator was not impeached in the pleadings which, form the foundation of an action. We have already decided that the will was in form properly executed. We have also dealt with the evidence of P.W.U, Papapetrou and D.W.1, Yannakis Neophytou. [*353] We have accepted the evidence of Neophytou and rejected that of Papapetrou.

The testator, who was a client of Mr. Anastassiades's office, visited that office in the late afternoon of the 13th October, 1965 for the purpose of executing a will. An appointment was arranged for the following day. On 14.10.65 he gave instructions to Neophytou, who thereupon prepared the will the will was read over to the testator and, being in accord with his own instructions, it was formally signed by him as we have already mentioned earlier on in our judgment. The testator thereafter, accompanied by the drafter, deposited his will at the District Court of Limassol. The contents of the will, the bequest to his named relatives, the place of abode of those legatees, corroborates the evidence of Neophytou. We are satisfied, that the testator knew, understood and approved at the time of the execution of this will the contents thereof.

4.Will void as the legatee Adventist Church of the 7th Day is not recognized in Cyprus.

5.Will void as the testator disposed of all his estate.

We shall take these points together.

By section 41 (1)(b) a person who dies leaving a spouse but no descendants may dispose of only one half of the net value of his estate. The present testator disposed of the whole of his estate of which he was possessed at the time of his death. This, however does not invalidate the will. [*354]

Section 41(2) provides: -

"Where a person has purported to dispose by a will of a part of his estate, in excess of the disposable portion, such disposition shall be reduced and abated proportionately so as to be limited to the disposable portion."

No evidence was adduced either by the Plaintiffs, or by the Defendants or by the Intervening Party, the Adventist Church of the 7th Day, with regard to the nature, existence and legality of this Church; therefore, we were left in darkness and we are not in a position to decide whether the legacy to this Church is a valid legacy or not. It is upon the executor to examine this matter and, if in doubt, to apply to the Court to clear up this point, when he will have eventually to abate the legacies according to law.

This disposes of the claim. The Action will be dismissed.

Defendant 1, Counterclaimant, is the named executor of the will. In the light of what we have already said, he is entitled to Judgment and order as per Counterclaim.

In the result, Action is hereby dismissed Judgment is given for Defendant 1 as per Counterclaim.

With regard to costs, bearing in mind the authorities and the facts and circumstances of the present case, we order that the costs of the Plaintiffs for one advocate, the costs of the Defendants 1 and 2 and the costs of the defendants 5 and 6 be paid out of the estate.

Action dismissed. Judgment

As per counterclaim. Order for

Costs as above.