Cypriot court validates Greek will executed abroad with two witnesses under local law requirements.

[*191] 1977 May 21

(LORIS, P.D.C. AND HADJITSANGARIS, S.D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Eleni P. Aspri,

Plaintiff,

v.

Ioannis Elia Pipides and 16 Others,

Defendants.

(Action No. 1993/75).

Will - Execution - Attesting witnesses - Section 23(b) of the Wills and Succession Law, Cap. 195 - Execution of will in Greece - Will prepared by a Notary Public

- Another Notary Public and another person signing will as witnesses - Requirements of section 23(b) (supra) satisfied.

Costs - Probate actions.

G. Ladas, V. Harakis with R. Savvides for Ant. Lemis, for the Plaintiff.

A.P. Anastassiades with Nt. Mastoroudes for R. Michaelides and P.A. Anastassiades, for Defendants 1,2,6,7,8,11,12, 13 & 14.

JUDGMENT

The judgment of the Court was delivered by:-

LORIS, P.D.C.: The deceased Despina Nicola [*192] Meliniotou was born in Constantinopole in 1903; she was married to a Cypriot and they established their marital home in Limassol Cyprus where the deceased permanently settled down and resided for over 50 years up to her death; she died on 5th February, 1974 in Limassol.

Whilst on a temporary visit to Greece, the deceased executed at Piraeus on 10.2.72 a document which is purported to be her last will and testament.

The deceased was a widow at the time of her death and had no children.

The plaintiff, a married lady born in 1942, is one of the nieces of the deceased and one of her heirs in case of intestacy; she is the daughter of Georghios Kanfonas of Xilocastro, Greece, a pre-deceased brother of the deceased.

Defendant 1 is one of the nephews of the aforesaid deceased; he is the son of the living sister of the deceased, namely, Anna Elia Pipide of Athens (Defendant 2). Defendant 1 is the major beneficiary named in the aforesaid purported will of the deceased. The remaining defendants are the heirs of the deceased in case of intestacy and/or beneficiaries under the purported said will.

Defendant 1 applied to the District Court of Limassol for the grant to him of letters of administration with the will annexed and the plaintiff filed a caveat and subsequently instituted the present action by virtue of which she is praying for:- [*193]

"(a) Declaratory Judgment that the deceased Despina Nicola Meliniotou died without leaving a will, or valid will in respect of her movable and/or immovable property in Cyprus and/or elsewhere."

"(b) Declaratory Judgment that the plaintiff is the only one amongst the heirs of the deceased who, being a niece of the deceased and/or permanent resident of Limassol, is entitled to be appointed administratrix of the estate of the deceased and/or has priority for appointment as administratrix."

"(c) Order of the Court appointing the plaintiff as administratrix of the estate of the said deceased either alone or together with, any other person the Court might deem proper".

The following allegations are set out inter alia in the Statement of Claim:-

(i) On 10.2.72 whilst the deceased was on a temporary visit to Greece, she signed at Piraeus, before a notary public, namely, Constantinos Georghiou Afara, a document intituled "Public Will".

(ii)The said document does not comply with the relevant legislation of Cyprus - which regulates the requisites of a will - and, therefore, it cannot be considered as a valid will of the deceased for Cyprus at least. [*194]

(iii) As a result of the said will not complying with the provisions of the relevant legislation in Cyprus, the said will is not a valid will and consequently the deceased died intestate and her estate should devolve to her heirs ah intestato pursuant to the provisions of the Cyprus Law.

Defendant 1, as well as the other eight defendants who have entered an appearance, resisted and denied the claim alleging that the aforesaid document executed in Piraeus on 10.2.72 was the valid last will and testament of the deceased and did set up a counterclaim by virtue of which they claim: -

"(a) A declaration by the Honourable Court that the said will is the last and true will and testament of the said deceased."

"(b) That the said document be declared proved and be admitted to probate."

"(c) That probate and/or letters of administration with the will annexed for all the estate of the said deceased be granted to the defendant and/or that he be appointed as the personal representative of the said deceased" .

When this action came on for hearing we were invited to rule as to the "burden of proof"; after hearing both sides we gave our ruling calling the defendants to begin as they were "setting up the will" and the burden of proving due execution thereof lay on them. [*195]

Three witnesses were called by the defence; they are:-

(1) Constantinos Georghiou Afaras of Piraeus (D.W.1), a notary public in Piraeus who drafted and had the custody of the purported will. He gave evidence and produced the following documents:-

(a) The will in question which is Exh. 1 before us,

(b) By consent a typewritten copy of Articles 1724-1734 (both inclusive) of the Greek Civil Code (Exh, 2).

(2) Ioannis Vassiliou Eoutsoukos of Piraeus (D.W.2), a notary public in Piraeus who was present in the office of the former witness throughout the process of the testatrix dictating her last will and D.W.1 drafting same; the signature of this witness was placed and appéars on Exh. 1, but the plaintiff's side maintains that D.W.2 just subscribed the will - he did not attest it. The allegation of the defence is that D.W.2 Was an attesting witness and, as such, he signed on Exh. 1 .

(3) Ioannis Nicolaou Parayios of Athens (D.W.3), a lawyer practising in Athens who accompanied the testatrix to the office of D.W.1, was present throughout the drafting and execution of Exh. 1 and signed thereon as a witness. [*196]

The plaintiff gave evidence herself mainly on matters incidental to her relationship with the deceased; no other witnesses were called by the plaintiff's side.

It is common ground that the deceased was domiciled in Cyprus.

Section 5 of our Wills and Succession Law, Cap. 195 provides as follows:-

"This law shall regulate -

“(a) The succession to the estate of all persons domiciled in the Colony."

"(b) The succession to immovable property of all persons not domiciled in the Colony".

According to the principles of the English Private International Law, which are part and parcel of the English Common Law and they are applicable here by virtue of section 29 of the Courts of Justice Law 14/60, the testamentary succession to immovable property is regulated by "lex loci rei situs" and same in respect of movable property by the "lex domicilii" of the testator at the time of his death.

In the present case both laws coincide; they are the laws of Cyprus and this is not disputed by either side.

The only complaint from the plaintiff’s side is that Exh. 1 does not comply with the requisites of a valid will as set out in section 23 of Cap.195 and in particular with paragraph (b) thereof.

Section 23 of the Wills and Succession Law, Cap. 195 reads as follows:- [*197]

"23. No will shall he valid unless it shall he in writing and executed in manner hereinafter mentioned, that is to say-"

"(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 be 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 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 learned leading Counsel appearing for the plaintiff invited us in his final address to find that Exh.1 is not a valid will because it was attested by only one witness, namely, Parayios (D.W.3). in direct violation of the mandatory provisions of section 23(b) of our Wills and Succession Law, Cap. 195 which requires attestation of the testator’s signature by two or more witnesses.

He maintained that Koutsoukos (D.W.2) and Afaras (D.W.1), by signing under the title "the notaries" were not attesting Exh. 1 "and both being lawyers were in a [*198] position to discern between a certification of the document’s contents and an attestation of a will". Further he submitted, after analysing the evidence adduced by the defence, that witnesses D.W.1 and D.W.2 should not be believed at all.

The learned leading Counsel appearing for the defence in his final address invited us to believe the witnesses called by the defence and find that Exh.1 is a perfectly valid will which complies with all the requisites of section 23 of Cap. 195, being attested not only by two but even by three attesting witnesses, i.e. the three witnesses who gave evidence for the defence.

Before proceeding to examine the contents of Exh.1 , we may once again repeat that Exh.1 is regulated by the provisions of our Wills and Succession Law, Cap. 195. In connection with attestation, section 23(b) provides that the signature of the testator shall be made or acknowledged in the presence of two or more witnesses present at the time and section 23(c) provides that 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.

Likewise the English Wills Act 1837, section 9, did not require any specific form of attestation. The intention of the attesting witnesses though is and has always been of paramount importance.

Thus in the case In the goods of MARY ANN BRADDOCK (1876) 45 L.J. P.D. & A.96, Sir James Hannen, p., stated the following (at p. 97):- [*199]

"... It is not necessary that the attestation of the witnesses shall be on any particular part of the paper, if the evidence satisfies the Court that their signatures were affixed, where ever they be, with the intention of attesting the signature which they have seen ... "

In "Theobald on Wills" , 13th Edition, in paragraph 121 (at p. 52) under the heading "Intention to Attest" , we read the following:-

"The attesting witnesses must subscribe with the intention that the subscription made should be a complete attestation of the will and evidence is admissible to show whether such was the intention or not .... "

In the case of Griffiths v. Griffiths (1872) 41 L.J.P. & M. 14, where a witness had written the word "executors" against his signature it was held on the evidence, that he had signed in the character of witness as well as in that of executor.

Let us now examine how Exh.1 came into existence:

According to the evidence of Ioannis Nicolaou- Parayios (D.W.3) (a lawyer practising in Athens since 1956), the deceased Despina Nicola Meliniotou, who was known to him since 1970, visited him on 10.2.72 and expressed her wish to make a will; upon this, the witness called Mr. Ioannis Vassiliou Koutsoukos of Piraeus (D.W.2) - a notary public in Piraeus for the last ten years - to co-operate as a witness [*200] in the execution of the proposed will and both of them together with the testatrix proceeded to the office of Mr. Constantinos Georghiou Afaras of Piraeus (D.W.1) - a notary public in Piraeus since1966.

At the office of Mr. Afaras, D.W.3 continued, the deceased stated to D.W.1 that she wished to make her will and D.W.1, after talking to her and ascertaining that she was competent to make a will, closed the doors and in the presence of the deceased caused D.W.2 and D.W.3 to be sworn on the Bible; thereafter D.W.1 put down the whole formal part of the will according to the requisites of the Greek Law and thereafter the deceased was stating her wishes

and D.W.1 was reducing them into his own handwriting in the proper form. When the document - Exh.1- was thus drafted, the will was read

out by D.W,1 in the presence of the testa trix, D.W.2 and D.W.3 and having been ascertained that the contents thereof were exactly what the testatrix wanted, same was signed accordingly by all present.

D.W.3 stated both in his examination in chief and in cross-examination that he himself signed as a witness on Exh.1 and so did Mr. Koutsoukos (D.W.2). When asked in cross-examination that he could not know the intention of Mr. Koutsoukos and in what capacity the latter signed, D.W.3 replied as follows (p.

22 letter ’F’ of the record):-

"A.I called Mr. Koutsoukos in order to co-operate as a witness in this case,I did so personally. I asked him to come along and sign as a witness ...". [*201]

When asked again in cross-examination whether two notaries public, by co-operating in the execution of the will, are both paid fees as notaries, D.W.3 explained that the drafting of a public document - and this was a public will - by two notaries is not allowed by the Greek Law. The witness went further and clarified that the Greek words sintaxis and "katartisis" bear different meanings: "sintaxis" of the will, he explained, is the composition and drafting of the wishes of the testator according to the form provided by the law. "Katartisis" of the will means execution of the will. Referring to the provisions of the Greek Law regulating the "sintaxin" and "katartisin" of a public will, this witness stated verbatim the following (p. 23 letter ’A' of the record):-

"First it must be drafted by one notary public and it must be witnessed either by three witnesses or by another notary public and a common person; this other notary public equates two witnesses, so we have in all three witnesses attesting the will" .

In this respect it is significant to note here that Article 1724 of the Greek Civil Code (Exh.2) reads as follows:-

"Article 1724. Public will. The public will is composed by the testator declaring his last will before a notary public in the presence of three witnesses or a second notary public and [*202] one witness and according to the provisions of Articles 1725 to 1737".

Further down in cross-examination D.W.3, when asked about the position of the signature of Mr. Koutsoukos (D.W.2) on Exh.1 , replied as follows (p. 23 letter 'B' of the record):-

"Q. And the fact that at the end of the will Mr. Koutsoukos did not sign where you signed, is of no importance?"

"A. My opinion as a lawyer is, that it has nothing to do" .

Constantinos Georghiou Afaras of Piraeus (D.W.1) stated inter alia the following:-

He has been a notary public in Piraeus since 1966. According to the Greek Law a person, in order to be appointed as a notary public, must be possessed with the following qualifications:-

(a) Diploma in Law

(b) Two years practice as a lawyer

A lawyer, in order to be registered as such, has to pass the examinations of "Arios Paghos". The witness added that he had seven years practice as a lawyer before his appointment as a notary public in 1966.

Speaking about the office and the duties of a notary public, he stated that a notary public is a public officer and amongst his duties is the drafting and custody [*203] of private documents constituting and/or proving transactions between private individuals; amongst these documents is the drafting and custody of public wills. He elaborated further on the requisites of the Greek Law as to the public wills and eventually produced by consent a typewritten copy of Articles 1724 to 1734 (both inclusive) of the Greek Civil Code (Exh.2).

The witness stated further that the deceased, after she had been told to bring the persons who would be witnesses, went to his (D.W.1’s) office accompanied by D.W.2 and D.W.3 and there in the presence of all aforesaid she stated her wishes and the witness in his own handwriting drafted Exh.1 which was read over in the audience of all present and signed by them.

D.W.1 went on to say that he had Exh.1 in his custody till the present day - the day of the hearing of this case

- according to the Greek Law and that he was producing it in accordance with the Order of One Member First Instance Court of Piraeus (Monomeles protodikion Pireos).

D.W.1 went on and:-

(a) Stated that the testatrix signed first on Exh.1 in his presence and in the presence of D.W.2 and D.W.3, then D.W.2 and D.W.3 signed in the presence of the testatrix and each other; lastly he himself signed in the presence of all the others present. [*204]

(b) Verified the signatures appearing:at the bottom of page 2 of the first sheet, margin at page 3 of the first sheet, bottom of page 4 of the first sheet and at the end of the will at page 5 (second sheet).

(c) Gave his legal opinion about the provisions of Article 1724 of the Greek Civil Code in respect of public wills; he stated that a public will is drafted by a notary public in the presence of three witnesses or in the presence of a second notary public and one witness; the second notary public, he added, acts as attesting witness with increased power, i.e. he equates two common witnesses.

(d) Stated further that Mr. Koutsoukos (D.W.2) was present and signed as an attesting witness; in Exh.1 D.W.2 is referred to as a notary public in order to emphasize his said capacity which equates him to two witnesses according to the Greek Law. For the same reason, he added, D.W.2’s signature appears at the end of the will under the title "I symvoleographi" .

(e) Explained that the words "symprattonta prosopa" include all the persons, witnesses and notaries public who participate in the formation and the execution of the will.

Ioannis Vassiliou Koutsoukos of Piraeus (D.W.2), a notary public in Piraeus for the last ten years, stated that at the request of D.W.3 he accompanied the deceased and [*205] D.W.3 to the office of D.W.1 in order to witness a will the deceased was intending to make. The witness further related what happened at the office of D.W.1 and how Exh.1 was drafted and executed. D.W.2 mentioned that according to the Greek Law all the persons present in the drafting and the execution of a will including the testator, the witnesses and the notary public, who is drafting the document, are considered as 'symprattonta prosopa" . The witness further dealt with the provisions of Article 1724 of the Greek Civil Code and attached to it the same interpretation as given by D.W.1 and D.W.3. He stated that at all material times he was acting as a witness; he was the second notary public whose attestation equates the attestation of two common witnesses: being a notary public as well, he added, he was asked by Mr. Afaras (the notary public who drafted the will) to sign under the word "notaries" ; it is not obligatory, he concluded, to sign at particular places.

We heard carefully the evidence of all the three witnesses called by the defence, we watched their demeanour in the witness box and we are satisfied about their veracity, It is a fact that in Exh.1 on two occasions (lines 14-18 of the first page and line 21 of the second page) D.W.2 is referred to as the notary public ( "tou epi sympraxi proslifthentos synathelfou mou symvoleographou ..." on the first page and "ekalesa ta anotero symprattonta prosopa synathelfon mou ..." on the second page) whilst D.W.3 is referred to as the witness.

D.W.1, who drafted Exh.1, gave his explanation for this: He wanted to emphasize that D.W.2 was the second [*206] notary public provided by Article 1724 of the Greek Civil Code whose attestation equates to the attestation of two ordinary witnesses.

It is also a fact that at the end of Exh,1 D.W.3 signed underneath the words "o martis" whilst D.W.2 signed (the first signature) underneath the words "I symvoleographi" . All three witnesses called by the defence explained why, despite some minor differences in the wording of their explanation. What they said and what they conveyed in substance is this:D.W.2waspresent throughout the drafting and the execution of the will as a witness; he was the second notary public provided by Article 1724 of the Greek Civil Code whose attestation equates to the attestation of two ordinary witnesses; it makes no difference if he signed under the words "I symvoleographi" ; the law - and they all had in mind the Greek Law - does not require the signing at a particular place.

Examining the will further we read the following after the expression of the wishes of the testatrix (line 26 of page 4 of Exh.1 up to the end of the will at page 5):-

### [*207]

###

Thus, from the contents of Exh.1 and the evidence of D.W.1, D.W.2 and D.W.3 the following facts have been established in connection with the role played by D.W.2 in the present case:-

(a) D.W.2 was called by D.W.3 to act as a witness in the proposed execution of the will of the deceased.

(b) D.W.2 for the said purpose accompanied D.W.3and the testatrix to the office of D.W.1.

(c) At the office of D.W.1 the testatrix, in the presence of D.W.2 and D.W.3, declared that she wanted her will to be executed before D.W.1, a notary public.

(d) ThereuponD.W.1 caused D.W.2 and D.W.3 to be sworn in; apart from the evidence of the witnesses themselves, this is clearly stated in Exh. 1 (lines 20-26 of page 2). In this respect it must be borne in mind that Article 1731 of the Greek Civil Code (Exh.2) provides for the swearing in of witnesses only. [*208]

(e) After the swearing in of D.W.2 and D.W.3 the doors were closed and the testatrix started stating her wishes in the audience of D.W.2 and D.W.3 whilst D.W.1 was reducing these wishes into his own handwriting in a proper form.

(f) When the wishes of the testatrix were thus declared, D.W.1 read over to the testatrix the contents of her will in the audience of D.W.2 and D.W.3 and thereupon Exh.1 was signed by the testatrix in the presence of D.W.1, D.W.2 and D.W.3; thereafter it was signed in the following order:

(i) by D.W.3 under the words "o martis"

(ii) by D.W.2

(iii) by D.W.1 ,

D.W.2 and D.W.1 signing under the words "I symvoleographi".

From the above facts it is abundantly clear that D.W.2 was not acting at all material times as a notary public employed to perform the ordinary duties of a notary public; he was not the notary public before whom, according to the Greek Law, the will of the testatrix was made; D.W.2 could not be engaged in the drafting of the will and in fact he was not so engaged for the following reasons:-

(a) According to the evidence of Mr.Parayios (D.W.3), the drafting of a public will by two notaries public is not allowed by the Greek Law. [*209]

(b) Exh.1 speaks clearly and in unequivocable terms of one notary public only, namely D.W.1, drafting same:

(i) In lines 11 to 14 of page 1 we read clearly: "enopion emou tou symvoleographou Pireos Constantinou Georghiou Afara ... epi parousia ..." Had it been drafted by two notaries public, one would expect to read "enopion imon". In this connection it is most important to note that the words "enopion" and "epi parousia" were employed; the same words appear in Article 1724 of the Greek Civil Code where "enopion" is used to indicate the notary public making the will whilst the words "epi parousia" are referring to the witnesses.

(ii) In lines 20 and 21 of page 2 we read the following : "ekalesa ta anotero symprattonta prosopa". If the will were drafted by two notaries public, definitely the plural would have been employed and it would read "ekalesamen".

Having considered very carefully the facts established by the evidence adduced and warranted by Exh.1, we hold the view that D.W.2 acted at all material times as an attesting witness; he had all the qualifications of an attesting witness required by section 24 of our wills and Succession Law, Cap.195 and he was present and attested the will (Exh.1) as required by section 23 of Cap. 195; the fact that D.W.2 was also a notary [*210] public does not alter the position as far as our law is concerned but explains, according to the evidence adduced, the very fact that he signed on Exh. 1 under the words "I symvoleographi". Therefore, Exh. 1 , which consists of two sheets of paper clipped together and folded so as to form eight pages out of which the last three are blank, is a perfectly valid will according to our law, complying with the requisites set out in section23 of Cap. 195, having been signed at the end thereof by the testatrix in the presence of D.W.2 and D.W.3, the attesting witnesses, who were present at the same time (D.W.3 was proved to be an attesting witness and this fact was conceded by the plaintiff’ s side) and attested and subscribed the will in the presence of the testatrix and in the presence of each other.

It was conceded by the plaintiff's side that if we find that D.W.2 was an attesting witness, then his signature appearing on each sheet of Exh.1(that is the end of page 2, margin at p.3,end of p.4andat the end of the will p.5) together with the signatures of the testatrix and that of D.W.3 is sufficient compliance with the requirements of section 23(d) of Cap. 195. Having found as above that Mr. Koutsoukos (D.W.2) was an attesting witness and in view of the signatures appearing on Exh.1 as hereinabove stated, we hold the view that Exh.1 complies with the provisions of section 23(d) of Cap.195 as well.

For all the above reasons we pronounce in favour of the defendants propounding the will which is admitted to probate. [*211]

In the result the action is hereby dismissed and Judgment and Order are hereby entered on the counterclaim.

Costs in probate actions are at the discretion of the Court. It is the general rule in probate actions, as well as in most forms of actions, that costs follow the event; the notion, sometimes entertained, that the costs of unsuccessful parties will generally be ordered out of the estate, in a probate action is erroneous. Of course, there are exceptions to the general rule that "costs follow the event"; these exceptions are dealt with in ''Williams and Mortimer on Executors Administrators and Probate" (1970 Edition at pp. 430-434) as well as in the cases therein cited. The facts of the present case do not bring same within the said specified exceptions although it may be said that the fact that the original will remained in the custody of the notary public (D.W.1) at Piraeus, outside Cyprus, and was only produced on 6th December, 1976 ought to have a bearing on the question of costs; at the same time we have noted that on 21st September, 1976, when this action came on for hearing, same was adjourned on the application of the defence and by consent the then costs were left in the cause but in any event not against the plaintiff.

Having given to the present case our best consideration, we have decided not to condemn the unsuccessful plaintiff to pay the costs of the action and the counterclaim; she will bear her own costs. The costs of the defendants both in the action and the counterclaim will be assessed by the Registrar and will be defrayed out of the estate.

Action dismissed. Judgment and Order

as per Counterclaim. Order for costs

as above.