Disposal of Property in a Will by an Incapable Person

The disposal of property through a will is a very serious act by a testator and its validity depends on the signature and its execution according to the law. The strict compliance with the provisions of the law is related to the testator’s ability to draw up a will and any deficiency or deviation causes the will to be invalid. George Coucounis explains further.

It is an interesting issue especially when it comes to people who are incapable and therefore, unable to deal with their personal affairs due to mental disability caused by medical reasons or old age, who all of a sudden draw up a will leaving their assets to a particular person and not to their lawful heirs. In such a case, a reasonable question is raised whether the will left by the testator is valid and how his lawful heirs should act to protect both the property and their inheritance right. They should take action quickly by taking legal steps for the cancellation of the will, claiming that it was not prepared according to the law or that it was drawn up as a result of undue influence and pressure exercised upon the testator or even claim that the will in question is a result of improper or psychological pressure, deceit or fraud exercised upon the testator by the person mentioned in the will.

The provisions of part II of the Wills and Successions Law, Cap.195, are relevant and in particular articles 23, 24 and 29 which refer to the way a will must be executed and when it is invalid and not in compliance with the law. The signature on the will is an issue to be examined with regard to its validity, especially when the testator knows how to read and write, since the signing by leaving the testator’s fingerprint does not comply with the provision in the law for signing the will, unless there is medical proof that the testator was unable to hold a pen and sign. In such a case, all the circumstances relating to the preparation and the signing of the will are to be examined in order to ascertain whether the testator was of sound mind and able to exercise his free will, having the ability to realise the consequences of his acts.

In a relevant case examined by the District Court of Larnaca, it was decided that the will prepared by a lawyer for a lady testator was not valid, because the testator signed the will by leaving her fingerprint even though she knew how to read and write and no doctor or other member of the staff of the nursing home could testify that she was unable to hold a pen and sign. Therefore, the testator was not considered incapable or incompetent to sign since she was not illiterate and signing by leaving her fingerprint was not a proper signature. Thus, according to the law, the will was not signed and it was invalid.

Furthermore, it was held that a person although incapable to sign due to a problem with his hands or fingers is considered under the law able to sign by leaving his fingerprint instead of his signature. The word “incompetent” in the interpretation of the term “sign” of article 2 of Cap.1, does not mean a person who is mentally disabled, but it is given a broader meaning. Therefore, a person who cannot sign his signature but is mentally healthy, he can leave his fingerprint on his will instead of signing it.

The Court also held that the testator was not of sound mind since there was a medical declaration that she suffered from Alzheimer, she was confused and had no communication with the people around her. Article 22 of Cap.195 provides that a person is able to draw up a will when is over the age of 18 and is of sound mind.

The term “sound mind” has a broader meaning in order to include various situations and cases which might be either short or long term, under which a person cannot draw up a will due to being affected mentally. For instance, when a person is drunk, has taken drugs or psychotropic substances or suffers from a disease or old age causing him not to be able to understand the consequences of his acts, he is considered incapable to draw up a will.

About the author

George Coucounis

George Coucounis is an experienced lawyer practicing in Larnaca, Cyprus. Educated at University College (London) and Thessaloniki University (Greece), George is fluent in English and has been practicing law in Cyprus since 1982.

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