Conditional revocation of a prior will is ineffective if the subsequent will fails formal validity.

[*320] 1979 September 10

(STYLIANIDES, P.D.C. AND FR. NICOLAIDES, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Georghios K. Georghiades and Others,

Plaintiffs,

v.

Yiannakis K. Pittakas and Others,

Defendants.

(Action No. 3981/78).

Will - Formal validity - Execution - Will consisting of two pages but of one sheet only - Not necessary for each page to he signed or initialled - Section 23(d) of the Wills and Succession Law, Cap. 195.

Will - Formal validity - Attestation clause - Record of memorandum of - Though not conclusive and does not preclude inquiry it affords a strong presumption that statutory requirements about attestation had been complied with.

Will - Revocation - Conditional revocation - Conditions unfulfilled - Intention of testator - Revocation with intention of making another will - Destruction of existing will - Subsequent will expressly revoking the former - Court pronouncing against formal validity of subsequent will - Effectiveness of revocation - Test applicable - Revocation of former will dependent on the bringing into existence of a subsequent will - Ineffective - Inference as to testator's intention can be drawn from surrounding circumstances.

N. Andreou, for the Plaintiffs.

R. Stavrakis with A. Agrotis, for Defendants Nos. 1 & 2.

R. Stavrakis, for Defendants Nos. 3, 4, 5 & 6.

No appearance for Defendant No. 7.

Gl. HjiPetrou with M. Savvidou (Miss), for Defendant No. 8.

JUDGMENT

The judgment of the Court was delivered by:-

STYLIANIDES, P.D.C.:- Georghios K. Georghiades, [*321] born in Aglandjia suburb, a teacher by profession, passed away unmarried on 17.8.76.

On 10.9.76 Nicos G. Papakyprianou, a named executor in a purported last will and testament of the said deceased dated 24.1.74 and deposited with the probate registrar under No. 22/74, applied in Probate Application No. 280/76 for probate of the said will. The blood relatives of the de cujus entered a caveat and by Action No. 4622/76 impeached the validity of the said will mainly on the ground that its execution did not comply with the formalities prescribed by section 23 of the Wills & Succession Law, Cap. 195. The aforesaid will did not survive in the Court. It was declared void because its execution did not satisfy the peremptory provisions of s. 23(b) and (c) of the law. The Court pronounced against it on

18.5.78 - (See exhibit No. 2).

On 30.5.78 the main legatee, phaneromeni Church of Nicosia, addressed a letter to the registrar whereby they applied through their secretary, Constantinos Makariou (D.W.1), that a will or the copy of a will dated

14.5.70 be deposited and numbered by the registrar. It was noted under Serial No. 52/78.

By another letter of even date

Makariou informed the registrar of this Court that the named executors in the 1970 will though called upon to apply for

probate of this will by letter dated 22.5.78, copy of which was attached, they failed to comply and one of them had stated orally to Makariou that he did not intend to apply for probate of this will. On 24th July, 1978, however, the named, executors [*322] in the 1970 will, namely, Ioannis Pittakas and Georghios Pitchakkos, applied for probate of the said will and their application was accompanied by the prescribed affidavit of Christos G. Pagthatis, one of the attesting witnesses. Some of the blood relatives of the deceased entered a caveat on 2.8.78 and thereafter instituted this action.

By the present action the plaintiffs, blood relatives of the deceased - surviving brother and sisters and the

children of the predeceased brother and sister of the de cujus - claim that the will dated 14.5.70 is null and void as:-

(a) The said will was not executed in accordance with the provisions of s.23 of the Wills & Succession Law, Cap. 195, as the signature of the testator was not made or acknowledged by him in the presence of the two attesting witnesses present at the same time; that the attesting witnesses did not subscribe the will in the presence of the testator and in the presence of each other; and that the will consisting of two pages, each page was not signed or initialled by the testator.

(b) The subject will was revoked by a subsequent will dated 24.1.74, expressly revoking the former one; by personal declaration of the testator of the revocation made to the probate registrar and to the named executors or any [*323] of them; and by tearing and/or destroying the same by the testator and/or on his express instructions; and that the so revoked will of 14.5.70 could not be revived otherwise than by re-execution thereof in manner in s.39 of the law provided and showing an intention to revive the same.

It is further contended in the statement of claim that the defendants are estopped from pronouncing the said will or applying for its probate, as they should have done so in Action No. 4622/76 of the District Court of Nicosia, in which the defendants in that action alleged that the deceased did not leave any former will.

The defendants denied and desisted the claim. Defendants Nos. 1, 2 and 3 in their statement of defence contend that the subject will was never revoked by the last will and any revocation of the former will was made conditionally on the last will - meaning the 1974 will

- being valid and/or such revocation was conditional on the validity of the last will and that the deceased did not have the intention to revoke the subject will, if his last (1974) will was not valid. They further deny that they are estopped. This defence was adopted by the other defendants who defended the case.

FORMAL VALIDITY OF THE WILL:-

The will propounded is a carbon copy of the original will which was deposited by the deceased with the probate registrar on 20.5.70 under No. 39/70. [*324]

We shall restrain ourselves at this stage to the formal validity of this document.

It is a typed document consisting of one sheet hut it is typed on

both pages of the same sheet. It hears the signature of the testator at the end thereof and the signatures of two attesting witnesses at the foot of

an attestation clause. All three signatures are on the second page. At the foot of the first page there are initials which, though we do not profess to be experts, comparing the signatures of the deceased and the handwriting of the deceased in the various documents before us, we are of the firm opinion that they are the intitials of the testator. We cannot trace, however, on the first page the signature or initials of the attesting witnesses.

The law governing the matter of the formal validity of a will in Cyprus is s. 23 of the Wills & Succession Law, Cap. 195, Which reads as follows:-

"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 [*325] 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 requisites of this section are imperative and not directory.

"Will" means the legal delcaration in writing of the intentions of a testator with respect to the disposal of his movable property or immovable property after his death, and includes codicil. The definition of "will" and the rigid wording of s.23 of the law create 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. Anastassiades & Others, (1973) 3 J.S.C. 337).

The will consists of two pages but of one sheet only and no more. The law requires that each sheet and not each page shall be signed or initialled. [*326]

The rule of construction is "to intend the legislature to have meant what they have actually expressed". Where by the use of clear and unequivocal language anything is enacted by the legislature, effect must be given to it. Once the meaning of a statutory provision is plain, it is not the province of a court to scan its wisdom or its policy.

As the will consists of one sheet only, it is not necessary for each page to he signed or intitialled.

The attestation clause is in the form prescribed by s.22 of the Wills & Succession Law of 1895. An attestation clause is not a prerequisite for the formal validity of a will. 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 he rebutted by evidence of the attesting witnesses, but the evidence, as to some defect, in execution, must be clear, positive and reliable.

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. (Vinnocombe v. Butler (1864) 3 W. & Tr. 380, at p.582, per Sir J. Wilde; in the [*327] Estate of Musgrove, Davies v. Mayhew (1927) P. 264).

No evidence was adduced to rebut this presumption. On the contrary the evidence of D.W.2, Pitchakkos, one of the two named executors who typed the said will and was present when it was executed, substantiates every word found in the attestation clause.

In view of the aforesaid we find that the said will in form was properly executed.

REVOCATION OF THE WILL:-

Profession, celibacy and probably upbringing made the deceased a pious man who desired to dispose most of his property to institutions connected with his religion and church and the needs of poor persons and pupils.

In 1963, when he was in active service in the remote small village of Kambi-tou-Pharmaka, made his first will and deposited same with the probate registrar at the then court-house. By letter, exhibit No.3, he informed the church committee of Phaneromeni that he was bequeathing £7,000.- to the said church but he desired that his name be inscribed on the plaque of the benefactors and that a memorial service be officiated for his soul - (see exhibit No. 3).

By exhibit No. 4 he informed Archbishop Makarios of the same will and bequest and by exhibit No. 5 he informed the priest of Phaneromeni Church accordingly. The Archbishop acknowledged this by exhibit No.

7 and on his instructions letter, exhibit No. 7, for the inscription of the name of [*328] the deceased on the plague and for the memorial service was sent to the church committee of Phaneromeni Church.

After the events of December, 1963, the court-house with its contents, including certainly the will of our deceased, came under the occupation of the Turkish leaders.

On 9.12.68 by letter, exhibit No. 8, addressed to the church committee of Phaneromeni he informed them that as his first 1963 will was in the Turkish occupied registry of Nicosia, he made a new will in which he bequeathed the same amount of £7,000.- and that he entrusted the said will to advocate Georghios HjiMinas of Nicosia.

On 26.11.69 a sealed envelope containing the last will of this deceased was delivered for safe-custody in the registry of Nicosia to remain deposited therein. Thus this will was deposited according to the Administration of Estates Rules under Serial No. 76/69 - (Part of exhibit No. 13).

On 23.4.70 the deceased sent to the church committee of Phaneromeni letter, exhibit No. 9, in which he describes the misery and poverty of the children of the elementary school of his native village. He expresses his sympathy; he was moved; and besides other donations he had given and are set out in the said letter, he prays that 1% of the £7,000,- bequeathed by his will to Phaneromeni Church be used by the said church for clothes and shoes for the poor and orphan children of Aglandjia elementary school.

Shortly later, on 14.5.70, the subject will was executed by him. It was typed by witness Pitchakkos and it [*329] was signed by the deceased and subscribed by the attesting witnesses at the elementary school of Aglandjia. By this will he was leaving and bequeathing £7,000.- to Phaneromeni Church but imposed a condition: the said church to pay 1% for clothes and shoes of the poor and orphan pupils of Aglandjia elementary school as per his statement in letter, exhibit No. 9, to which we have just referred.

On 20.5.70 he attended the registry of this Court and did two things: He revoked Will No. 76/69 and deposited the will of 14.5.70 under No. 39/70. A carbon copy of the 1970 will was handed to Makariou (D.W.1), the secretary of the church committee of Phaneromeni. This is the copy of the will to which we have referred earlier in the judgment and this is the will which was propounded by some of the defendants and which is impeached by the plaintiffs. A carbon copy of the same will was given to witness Pitchakkos and to the headmaster of Aglandjia elementary school.

On 22.4.71 he handed to Makariou (D.W.1) document, exhibit No. 11 - a list of his properties, i.e. name of his debtors, address, number of mortgage and amount due to him, the total of which was in the region of £21 ,000.-.

On 24.1.74 he made and executed another will. On 5.2.74 he sent to the church committee of Phaneromeni letter, exhibit No. 10, whereby he informed them that by his will dated 24.1 .74 he revoked the will of 14.5.70 and that by the new will he was bequeathing to the same church the same amount of £7,000 but he increased the amount to be

paid in perpetuity for the children of his native village from [*330] 1% to 2%. Copy of the will of 24.1.74 was enclosed.

On 6.3.74 he appeared before the

probate registrar and did two things simultaneously: he revoked the 1970 will and deposited the 1974 will - (See exhibit No. 14) - His application to the registrar is

short and it runs as follows:- "I wish to revoke will under the register of wills No. 39/70 deposited on 20.5.70 and to deposit today a new one". The original of the 1970 will deposited under No. 39/70 was torn and burnt in his presence and in the presence of his advocate there and then. The receipt provided by the rules which was given to him on 20.5.70 in respect of the deposit of Will No. 39/70 was handed over to the registrar by the

deceased. At the foot thereof the deceased wrote the following: "Ηκύρωσα την παρούσαν διαθήκην και έκαμα νέαν τη 24 Ιανουαρίου 1974. (Υπ.) Αγαμέμνων Κωνσταντίνου Γεωργιάδης".

The testator later asked D.W.2, Pitchakkos, todestroy the copy in his possession as he had executed a new will. Actually on 30.1.75 he presented to the witness a letter in the handwriting of the deceased and asked him to sign it as Pitchakkos had informed him that he had torn the said will. This letter was signed by pitchakkos. It was drafted and written by the deceased. It reads as follows: "Αναφορικώς

προς το έγγραφον της Διαθήκης Σας που είχατε κοντά μου προς φύλαξιν, Σας

πληροφορώ ότι, κατόπιν της δηλώσεώς Σας προς εμέ ότι ηκυρώσατε την ως άνω διαθήκην και εκάμετε νεωτέραν, ημ/μηνίας 24/1/1974 την οποίαν και κατεθέσατε συμφώνως τω

Νόμω, εις τον[*331] Πρωτοκολλητήν

Λ/σίας κατά την 6/3/74 και υπ' αριθμόν καταθέσεως 22/74, Σας δηλώ ότι την διαθήκην που είχατε κοντά μου ως ανωτέρω ανέφερα, την έσχισα από τότε που μου εδηλώσατε ότι την ηκυρώσατε, καθ' ότι ήτο πλέον εντελώς άχρηστος".

The 1974 will under No. 22/74 was declared null and void by the Court as the signature of the testator was not acknowledged in the presence of both witnesses at the same time and they did not attest and subscrive the will in the presence of each other.

It is the contention of the plaintiffs that the 1970 will was revoked and Could only he revived by re-execution as provided in s.39 of Cap. 195. Failing such re-execution this will is of no legal effect. The defence, however, argued that in the circumstances of this case the subject will was only conditionally revoked and as the 1974 will was not valid, the revocation of the subject will was never in law effected.

There is absolute dearth of authority in Cyprus.

The doctrine of dependent relative revocation or conditional revocation is well embedded in the English Law. It is a doctrine of construction. Even before the enactment of the Wills & Succession Law, 1837, there are cases in which this doctrine was pronounced. Hyde v. Hyde (1708) 21 English Reports, 755, and Onions v. Tyrer, (1716) 24 English Reports 418, are well known cases on the matter. [*332]

In Onions v. Tyrer it was held that a void will or codicil, though there be a clause of revoking all former wills, will not however operate as a revocation. Cancelling a former will on a presumption that a later will is good, which proves void, will not let in the heir. Cowper, L.C., said at p.419:-

"It is plain the testator did not mean to revoke his former will by cancelling, but by substituting another perfect will in lieu thereof, and not otherwise, and therefore the cancelling thereof was but a circumstance showing that he thought he had made a good disposition by the second will, and in confidence thereof it was done with no other intent, but that the second will should thereby most surely take place so that if the second will is not valid, as the testator thought -it was, and without which he would not have cancelled the first, the cancelling the first will, depending thereon, ought to be looked upon as null also, and therefore the first will as to the said lands, is still subsisting and unrevoked".

Sir William Grant, M.R., in Ex parte Earl of Ilchester (1832) English Reports, 142, said:-

"The rule of the civil law is, tunc prius testamentum rumpitur, cum posterius perfectum est. In Limbey v. Mason, that is laid down as the rule of our law. There is no doubt but the testator, by any writing, etc., or by any cancelling designed merely to disavow the former [*333] will, might have revoked it without more, but he designed to do it by a new will, and unless such writing be effectual to operate as a will, it shall not amount to a revocation".

In Powell v. Powell (1861-1873) All E.R. (Rep.) 362, Sir J.O. Wilde (later Lord Penzance) said at p. 363:-

"This doctrine is based on the principle that all acts by which a testator may physically destroy or mutilate a testamentary instrument are in their nature equivocal. They may be the result of accident, or, if intentional, of various intentions. It is, therefore, necessary in each case to study the act done by the light of the circumstances under which it occurred, and the declarations of the testator with which it may have been accompanied; for, unless it be done animo revocandi, it is no revocation. What, then, if the act of destruction be done with the sole intention of setting up and establishing some other testamentary paper for which the destruction of the paper in question was only designed to make way? It is clear that in such case the animus revocandi had only a conditional existence, the condition being the validity of the paper intended to be substituted".

And further down:-

"For what does it matter whether a testator were to say: 'I tear this will of 1860, because I have [*334] this day (Jan. 1, 1861) executed another designed to replace it' ; or: 'I tear this will of 1860, because I desire and expect that the effect of my so doing will he to set up my old will of 1840'? In either case the revocatory act is based on a condition which the testator imagines is fulfilled. 1% both cases the act is referable not to any abstract intention to revoke, but to an intention to validate another paper. And if in neither case is the sole condition upon which its revocation was intended fulfilled, in neither is the animus revocandi present".

In Dancer v. Grabb & Another (1861-1873) All E.R. (Rep.) 692, Sir James Hannen had this to say:-

"Or, to state the proposition in different language, if the testator's act can be interpreted thus: 'Whatever else I may do, I intend to cancel this as my will, from this time forth’ , the will is revoked, but if his meaning is, 'As I have made a fresh will, my old one may now be destroyed', the old will is not revoked if the new one be not in fact made".

In Re Paris (No. 2), (1911) 1 I.R.469, the Irish Master of the Rolls, Lord Meredith, adopted the statement of the law in Theobald on Wills, 7th edition, p.750, in the following passage:- [*335]

’"The true view may be that a revocation grounded on an assumption of fact which is false takes effect unless, as a matter of construction the truth of the fact is the condition of the revocation, or, in other words, unless the revocation is contingent upon the fact being true: See Thomas v. Howell (1874) L.R. 18 Eq. 198'. I adopt that statement of the law, merely substituting for the words 'may be' the word 'is'. The true view is, in my opinion, the view so clearly stated by Mr. Theobald".

The doctrine of dependent relative revocation has come before the Court of Appeal only twice in its not brief

life: In the Estate of J.R. Southerden - Adams v. Southerden (1925) P. 177, and In re Jones (Deceased) (1976) 1 All E.R. 593.

In Re Southerden the statement of the law adopted in Re Faris was approved and followed. A testator under the mistaken belief that in the event of his dying intestate his widow would be entitled to the whole of his property revoked a will which he had made by burning it. It was held that the revocation of the will being dependent on a condition which was not fulfilled was inoperative, and the contents of the will so destroyed were admitted to probate.

Pollock, M.R., referred to Powell v. Powell (supra) and also to Dixon v. Solicitor to the Treasury (1905) P.42, in which Gorell Barnes, J., had left the following two questions to the jury: "(1) Whether the testator cut his [*336] signature off the will with the intention of revoking the will; or (2) Whether the testator cut his signature off the will with the intention that the will should he revoked conditionally on his executing a fresh will".

Warrington, L.J., said at p. 184:-

"The cases also establish that if the truth of a particular fact is a condition of the destruction, and the fact turns out not to be true, there is no revocation".

Atkin, L.J., said:

"The case is of some importance as being the first in which the Court of Appeal has been called upon to express an opinion on the question of conditional revocation. The case depends on the Wills Act,1837, and therefore it would not he proper to determine it upon cases decided before that Act was passed. The material sections of the Act are ss. 18, 19, 20. One of the provisions of s.20 is that a will cannot he revoked except by burning, tearing or otherwise destroying it with the intention of revoking it. The Court has therefore to consider whether it was the intention of the testator by burning his will to revoke it, that is, to put an end to the operation of a document which up to that time was believed to be an effective document There has been brought into existence in recent years a doctrine which has [*337] been described as 'dependent relative revocation'. The question in each case is, had the testator the intention of revoking his will? The intention may be conditional, and if the revocation is subject to a condition which is not fulfilled, the revocation does not take effect. Cases of dependent relative revocation are mostly cases where the testator has supposed that if he destroyed his will his property would pass under some other document. But the condition is not necessarily limited to the existence of some other document. The revocation may be conditional on the existence or future existence of some fact. You must prove that there was in fact a condition. It is a question of fact in each case".

Where a will is destroyed by the testator in the belief that he has validly executed another will, and the second will fails for want of due execution, the first will is not revoked, and evidence may be given of its contents. (Re Bunn, Durher v. Bunn

(1926) 134 L.T. 669; In the Estate of Davies, Russell v. Delaney (1951) 1 All E.R. 920).

Havers, J., In the Estate of Botting - Botting v. Botting (1951) 2 All E.R. p. 997, had this to say at page 1001 : -

"If I am satisfied on the whole of the evidence that the destruction was conditional on another will being made, then

the doctrine of dependent relative revocation applies, and, if it turns out [*338] that this later instrument is invalid because it

has not been properly attested and executed by the testator, the result is that the will of 1947 has not been revoked by that destruction because the testator did not have any animus revocandi".

The doctrine came up before the Court of Appeal in the rather recent case of Re Jones ( deceased) - Evans v. Harries & Others (1976) 1 All E.R. 593. Buckley, L.J., formulated some questions which are very relevant to this case:

(1) Did the testator intend to revoke his will? (2) If he had an intention of revoking the will, was his intention absolute or qualified, so as to be contingent or conditional? If it was absolute, that is the end of the investigation, for the act takes effect as a revocation. If, however, it was qualified, the further question which arises is: (3) What was the nature of the qualification? The testator's intention may have been dependent on an intent to revive an earlier testamentary document, founded on an erroneous belief that the cancellation of the later will would have that effect, as in Powell v. Powell; or it may have been wholly and solely dependent on an intention to displace it by some new testamentary disposition. An example of this may be taken to be Dixon v. Treasury Soli-citor

(1905) P. 42, where there was evidence that the testator thought the cancellation of an earlier will was a necessary precondition of making a new one. If the testator's intention is found to have been a qualified one, subject to [*339] some condition or contingency, the final question arises: (4) Has that condition or contingency been satisfied or occurred? If the condition or contingency to which the intention to revoke was subject has not been satisfied or occurred, the revocation is ineffective; if it has been satisfied or occurred, the revocation is effective.

Roskill, L.J., said at page 602:-

"What seemed absolutely clear to the judge, and I agree with him, is that the mutilation was effected with the intention of revoking the will. Thus s. 20 of the Wills Act, 1837, is satisfied. The sole question we have to decide is whether the revocation was conditional or absolute.

By ’conditional’ is meant that the efficacy of the revocation was to be dependent on the bringing into existence subsequently of a valid testamentary disposition, or of the existence or future existence of some fact. (See the judgment of Sir J.P. Wilde, later Lord Penzance, in Powell v. Powell, and of Atkin, L.J., in Re southerden). By ’absolute’ is meant that the revocation was to take effect at once, irrespective of the bringing into existence subsequently of a valid testamentary disposition, or of the existence or future existence of some fact".

Goff, L.J., at page 605, referring to the doctrine of dependent relative revocation observed:- [*340]

"In whatsoever way it arises, however, the principle on which it falls to be decided is, in my judgment, the same and well settled by authority. It is this: was the revocation absolute and unqualified, in which case it takes effect whatever happens, or conditional, in which case it does not take effect unless the condition he satisfied? I agree that each case must turn on its own facts and that reference to the authorities is of use, therefore, only insofar as they establish, as in my judgment they plainly do, the principle which I have just stated".

Our law with regard to revocation of wills is set out in s.37 of the Wills & Succession Law, Cap. 195, which reads as follows:-

"37. A will may be revoked -

(a) by a subsequent will expressly revoking the former one;

(b) by a subsequent will inconsistent with the provisions of the former one, but so far only as the provisions of the two wills are inconsistent; or

(c) by burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction, with the intention of revoking it". [*341]

This part of the law was taken from the English Wills Act, 1837. The question that poses is not the one argued by the plaintiffs' advocate that there can be no revival or resurrection of a revoked will but whether the will propounded - the one of 1970 - was effectively revoked. The English case law, to which we have referred,

especially the cases decided after 1837? are adopted by us as the animus revocandi is an element sine quo non for the

effective revocation of a will.

In the present case our de cujus made a subsequent will expressly revoking every former will - (Cl. 1 of Will No. 22/74 dated 24.1.74 and deposited on 6.3.74) - Furthermore he attended the probate registrar and he applied by exhibit No. 14 to revoke the Will No. 39/70 and dated 20.5.70 "in order to deposit a new one today". The 1970 will was torn and burnt by the registrar in his presence and at the same time the 1974 will was deposited. The Court pronounced against the formal validity of the 1974 will in Action No. 4622/76. The will of 1974 did not operate. Therefore, from the acts of the deceased, to which we have just referred, the only inference is that the deceased intended to revoke the 1970 will. Was this intention absolute or conditional?

In answering this question we are entitled to take into consideration all the surrounding circumstances including all the post-testamentary written statements of the deceased. (In the Estate of Bridgewater (deceased) (1965) 1 All E.R. p.717; Evidence Law, Cap. 9, s.4). [*342]

The two wills of 1970 and 1974 and the dispositions therein, the letter of the testator dated 5.2.74 addressed to the church committee of phaneromeni (exhibit No. 10), his application to the probate registrar dated 6.3.74 (exhibit No. 14), the writing in his handwriting on the receipt of the 1970 will "I revoke the present will and I made a new one on 24.1.74", the letter he addressed to himself and put down in his own handwriting and signed by Pitchakkos dated 30.1.75, produced by the plaintiffs' side in the cross-examination of this witness, lead to the inescapable and only conclusion that the intention of this testator to revoke was not absolute but it was conditional. His intention was that the 1970 will would be revoked in order to make way for the 1974 will. The revocation of the 1970 will was dependent on the bringing into existence of a subsequent will. His animus revocandi was dependent on the 1974 will being valid and operative. His intention was not to revoke the 1970 will irrespective of whether the 1974 will was valid or not.

The condition to displace the 1970 will by the new 1974 testamentary disposition was not satisfied. The 1970 will did not survive in Court. The revocation of the 1970 will - the will propounded by the defendants and impeached in this action - is ineffective.

The plea of estoppel was rightly and wisely not pursued during the trial and we take it that it was abandoned.

Before concluding, however, as the will for the validity of which we shall presently pronounce falls short of the wishes of the testator in the sense that it provides [*343] that only 1 per cent. of the £7,000.- bequeathed to Phaneromeni Church he paid annually in two instalments for the clothes and shoes of the poor children of the elementary school of his village instead of two per cent., the wish he expressed in his letters to the said legatee and which was probably the main reason for making the 1974 will, we hope that the church committee of Phaneromeni on their own accord will honour their acceptance of this burden so that the ghost of this testator who waits on the other bank of the Styx be not dissatisfied.

In view of what we have endeavoured to explain, this action is dismissed. We pronounce in favour of the will dated 14.5.70, the carbon copy of which was deposited with the registrar on 30.5.78.

The costs of all parties to be paid out of the estate.

Action dismissed.

Costs of all parties out of the estate.