Cypriot court invalidates will due to failure of testator to acknowledge signature before both witnesses simultaneously.

[*466] 1978 May 18

(STYLIANIDÉS, P.D.C. & LAOUTAS, D.J. )

IN THE DISTRICT COURT OF NICOSIA

Georghios K. Georghiades and Others,

Plaintiffs,

and

Nicos Georghiou Papakyprianou and Others,

Defendants.

(Action No. 4622/76).

Will - Execution - Formal validity - Two attesting witnesses - Testator’s signature not acknowledged in the presence of both witnesses at the same time and they did not attest and subscribe the will in the presence of each other - Will invalid - Sections 23(b) and (c) of the Wills and Succession Law, Cap. 195.

N. Andreou, for the Plaintiffs.

A. Agrotis, for Defendant A.

R. Stavrakis, for Defendants B 1,2,3,4.

R. Stavrakis for C. Kypridemos, Counsel of the Republic, for Defendant B 7.

No appearance for Defendants B 5 and 6.

JUDGMENT

The judgment of the Court was delivered by: -

STYLIANIDES, P.D.C.:- Agamemnon K. Georghiades, [*467] a retired school teacher, passed away on 17th August,1976. He lived in celibacy and his lawful heirs are seven sisters and brothers, the son of a predeceased sister and the children of a predeceased brother.

On 10.9 1976, the defendant "A", Nicos Georghiou Papakyprianou, of Nicosia, applied under Probate Application 280/76 for probate of the last will and testament of the said Agamemnon K. Georghiades which was deposited by the deceased at the Registry of the District Court of Nicosia under number 22/74. The said applicant-defendant is the named executor in the said will. By his said will the deceased bequeathed a considerable part of his property to various institutions.

On 15.9.1976 Georghios C. Georghiades, Souzanou K. HadjiGeorghiou, Maria M. Savva and Andreas M. Demetriades, entered a caveat.

On 8.10. 1976 the lawful heirs of the deceased filed this action impeaching the will on the ground that the said will is not valid in solemn form and in conformity with the law, as it was not duly executed according to the provisions of the Wills & Succession Law. The defendants resisted and denied the claim and contended in their statements of defence that the said will was executed according to the formalities prescribed by the 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. [*468] Ir. 152).

Various systems of law make provisions for the formal validity of a will. The law governing the matter in Cyprus is Section 23 of the Wills & Succession Law, Cap. 195, which reads as follows:-

"No will shall be valid unless it shall be in writing and executed in manner hereinafter 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 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".

This law came into operation on 1.9.1946. It has motified and amended Section 22 of Law 20/1895 following the

decision in Pavlides v. Potamitis, 9 C.L.R. 119. The sections relating to the form of the will, its [*469] probate and its administration are based upon the English Law, but the legislator has introduced modifications presumably with the view of adapting the law to the circumstances of our country. Where, however, in following the English model the lagislator uses English legal phraseology, it is no doubt, reasonable that the words used should be construed in the sense which they appear in English Law.

The statute no longer requires, a specified and precise form of attestation clause; two instead of three attesting witnesses are sufficient.

The requirements of Section 23 are imperative and not directory. The commencing words of Section 23 are: "No will shall be valid unless it shall ....". These words read together with the definition of will in Section 2 of Cap. 195 created a Procrustean legal framework to which, no matter what the collateral circumstances, a will has to be fitted, otherwise it cannot survive in a Court of law (Anastassis Charalambous & Others v. Alkis Demetriou & Others , 1961 C.L.R. p. 30; Christopoulou & Others v. Christopoulou & Another (1971) 1 C.L.R. 437; Georghourou & Others v. Anastasiades & Others (1973) 3 J.S.C., 337)

The will is before us in the file of Probate Action 280/76, Exhibit 1. It is typed document; it consists of two sheets . At the foot or end thereof, there are two signatures, on two affixed

stamps. Thereunder there is an attestation clause and then follow the [*470] signatures of two attesting witnesses, namely Andreas Charalambous

and Phivos N. Karageorgis.

The attestation clause states that the will was executed in accordance with the law. It is in the form prescribed by Section 22 of the Wills & Succession Law of 1895. The first sheet bears the initials of three persons. 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, Davies v. Mayhew

(1927) p. 264). This presumption found its way in the Administration of Estate Rules 1955, Rule 12(2), which reads as follows:- "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".

In Georghourou & Others v, Anastassiades & Others, it was said at page 343:-

"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 [*471] the testator and in the presence of each other), though not conclusive and does not preclude inquiry into the fact, it affords a strong presumtion 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".

The only witnesses who testified before us are a clerk of the Registry who produced the file of Probate Application 280/76 (in which the will is found) and Andreas Charalambous and Phivos Karageorghis, the two attesting witnesses. Their evidence is short and uncontested. We accept it.

The deceased was living in Lycourgos Street, Nicosia. Andreas Charalambous is a member of the Committee of Phaneromeni Quarter and houses his business at No.6 Lygourgos Street; the other attesting witness runs a shop at No. 21 Lygoyrgos Street.

On 24.1.1974 the deceased called at

Karageorgis and told him: "Έχω μία διαθήκη και σε παρακαλώ έλα να υπογράψης και εσύ εις το κατάστημα του κ.

Ανδρέα" meanning the other attesting witness. The deceased proceeded to the shop of Andreas Charalambous, he told the witness that he had a will ready and he read it over to the witness. He placed it on the desk of the witness; the will was signed by the deceased. They waited for the [*472] other attesting witness but as he was late the deceased acknowledged his signature in the presence of Andreas Charalambous and requested him to sign it as attesting witness. The witness did sign his name, as appearing on the will and initialled the first sheet. Shortly later Phivos N. Karageorgis joined them at the shop of Charalambous. The deceased, in the presence and hearing of Charalambous, showed to him the will and said to him.

"This is my will. This is my signature as I have already signed it and this is the signature of witness Andreas Charalambous, sign it yourself". Karageorgis read the will for himself and he signed it as second attesting witness and initialled the first sheet.

Does this comply with the formalities required by the law? The will was signed by the testator NOT in the presence of any witness. In the Goods of Gunston, Blake v. Blake 1881 - 1885) All E.R. Rep., 870, it was held that to consitute a sufficient acknowledgement within the Wills Act 1837, Section 9, by the testator of his signature to a will, the witnesses must both see, or have the opportunity of seeing, the testator’s signature on the document, and the testator must say in their presence something equivalent to: that is my will, that is my signature. Where the attesting witnesses cannot see the signature and have no opportunity of seeing it, it is immaterial what the testator says

George Jessel M.R. said at page 872:- [*473]

"What is in law a sufficient acknowledgment under the statute? I agree in the statement of the law on this point contained in Jarman on Wills (4th Edition, p. 108). 'There is no sufficient acknowledgment unless the witnesses either saw or might have seen the signature, not even though the testator should expressly declare that the paper to be attested by them is his will', and proceeded: I will add that, in my opinion, it would not be sufficient if the testator said: ’My signature is inside the will’, unless the witnesses had had an opportunity of seeing the signature".

In Re Groffman (deceased), Groffman & Block v. Groffman (1969) 2 All E.R., 108, the deceased, having at some previous time signed his will asked two friends to witness it. There being no convenient space in the room in which they were, one of the witnesses took the deceased into an adjacent room, where the deceased took the will from his pocket, unfolded it and asked the witness to sign giving his occupation and address. The witness noticed the deceased's signature on the will and signed his name. He then return to the other room and asked the other witness to go and sign, which he did in the presence of the deceased, the first witness not going with him. On the question whether the deceased acknowledged his signature in the presence of both witnesses it was held that there was no acknowledgement by the deceased in the presence of two or more witnesses at the same time. [*474]

Sir Joclyn Simon, P., said at p. 113;-

"There is, however, one final argument. Having submitted originally that there was a sufficient acknowledgment to satisfy the Act in what happened in the lounge, when admittedly both attesting witnesses were present, counsel for the plaintiffs puts his argument alternatively in this way. He says that what happened was all part of one res gestae - there was no break in the continuity of the transaction. Both attesting, witnesses had an opportunity of seeing the signature at the time they signed the will, which was within a matter of seconds of each, other and within a matter of seconds of being asked to witness it. On that argument the acknowledgment started in the lounge but ended in the dining room. It seems to me that there is one fatal flaw in that argument; namely, that if the acknowledgment was not completed until the dining room, then there was no completed acknowledgment in the presence of both attesting witnesses being present at the same time.”

"In the end, therefore, although I would gladly accede to the arguments for the plaintiffs if I could consistently with my judicial duty, in my view there was no acknowledgment or signature by the testator in the presence of two or more witnesses present at the same time; and I am bound to pronounce against this will". [*475]

In Roberts v. Philip (1855) 4 E.& B., 45., Lord Cambell C.J., said:-

"Nothing more is required than that the will should be attested by the witnesses; i.e. that they should be present as witnesses and see it signed by the testator, and that it should be subscribed by the witnesses in the presence of the testator; i.e. that they should subscribe their names upon the will in his presence."

In Moore v. King, 163 E.R., 716, Sir Herbert Jenner Fust referring to the provisions of Section 9 of the Wills Act 1837, which reads: "and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator", said at p.719:-

"I am inclined to think that the Act is not complied with unless both witnesses shall attest and subscribe after the testator's signature shall have been made and acknowledged to them when both are actually present at the same time. If the one witness has previously subscribed the paper, and merely points out her signature when the testator acknowledges his signature in her presence, and in that of the other witness, which latter witness alone then subscribes, that I hold not sufficient; I have no explanation why the first witness did not re-subscribe". [*476]

In Wyatt & Berry v. Berry & Others, 62 L. J. P. 28, it appeared, from the evidence that the testator brought the will to the shop of the elder of the two attesting witnesses and told him that it was his will, that he then signed it and asked him to affix his name as witness. He did so, and then called in his son to whom the testator made the same statement after which the son also signed his name. The father saw the testator’s signature on the will at the time he signed it and the son saw the testator's signature and also that of his father on the will at the time he signed it. The interval of the signing by the first witness and that of the second was only a few minutes. The will contained an attestation clause. Barnes J. pronounced against the will as void and invalid as it was not duly executed in accordance with the Wills Act, Section 9.

The aforesaid were followed and applied in the Estate of Davies, Russell v. Delaney (1951 ) 1 All E.R., 920. In Davies case it was held that it was essential that the testatrix should have signed the will or acknowledge her signature in the presence of both the witnesses, before either they had attested and subscribed the document. The facts of that case are very similar to the facts of the case under consideration.

In Re Colling, deceased, Lawson & Another v. Von Winckler & Another (1972)

1 W.L.R. 144, the testator, while a patient in Hospital, started to sign his will in the presence of a nurse and another patient [*477] both of whom he had asked to act as witnesses. Before he had completed his signature the nurse left to attend to a patient elsewhere in the ward. During her absence the testator completed his signature and the other patient, who had been present during the whole of the signing, signed as a witness in the presence of the testator. When the nurse returned, the testator and the other patient acknowledged their signatures to her and she signed as a witness. It was held that the requirements of Section 9 had not been complied with; it was essential that the testator should have signed the will or acknowledged his signature in the presence of both witnesses before either of them had attested and subscribed the document.

Our section is more explicit. Paragraph (b) is a replica of the corresponding part of Section 9 of the English Wills Act 1837. In para (c) the Cypriot legislator added the words "and in the presence of each other" (The witnesses). The requirements of the section are established as strick and technical. Both the technicality and the effect of defeating a testator's intentions are brought out very clearly by the provisions of the law and the cases to which we have referred.

The will which was pronounced by the named executor is genuinely the purported will of the deceased Agamemnon R. Georghiades. The section is designed for the avoidance of fraud. We are, however, compelled to decide the case in accordance with law. The signature was not acknowledged in the presence of both witnesses [*478] at the same time and they did not attest and subscribe the will in the presence of each other. We have come to the

conclusion with the greatest regret that the will was not executed so as to satisfy the peremptory provisions of Section 23(b) & (c) of the law and therefore we pronounce against it. It is not a valid will. The testator’s intentions are defeated.

Before concluding we would like to express the hope or wish that the successful heirs of the deceased wills of their own volition, use part of his estate to satisfy partly his intentions and have thus a better welcome by the ghost of their relative who waits them on the other bank of the styx to receive them; if they do so his dissatisfaction will be considerably diminished.

In the result we declare the will of

24. 1 .1974 of the late Agamemnon K. Georghiades as not valid.

With regard to costs, in all the circumstances of the case we order that the costs of all sides to be paid out of the estate.

Will declared invalid.

Costs out of the estate.