Contesting a will in Cyprus

A will can be challenged in Cyprus. The court can set it aside if it was not executed in the form required by law, if the testator (the person who made the will) lacked capacity, if it was obtained by undue influence or fraud, or if the document is forged. A different route protects close family: where the will gives away more than the law allows, the gifts are cut back, and the will stands.

The governing statutes are the Wills and Succession Law, Cap. 195, and the Administration of Estates Law, Cap. 189.

Who can contest a will

Anyone with an interest in the estate can ask the court to set aside a will.

The usual claimants are heirs under the intestacy rules (the rules on who inherits what a will does not or cannot give away) and beneficiaries named in an earlier will. The statutory heirs, the relatives who inherit by law, can claim the share the law reserves without attacking the will as a whole.

Grounds for setting a will aside

The main grounds are a defect in the signing, lack of capacity, undue influence, forgery, and fraud or a will the testator did not understand. Each one attacks the will or a part of it, not the fairness of its terms.

Formal defects in the signing

A will must be in writing and signed at the end by the testator, or by another authorised person acting in the testator's presence (Article 23 of Cap. 195).

The signature is made or acknowledged before two or more witnesses present at the same time, who sign in the testator's presence and each other's. Where the will runs to more than one sheet, every sheet is signed or initialled by or for the testator and by the witnesses.

A change made to a will after it was signed has no effect if it was not signed and witnessed in the same way as the will, except where the original words can no longer be read (Article 28). A will that fails any of these requirements is not valid if the court does not correct it. Since 2015, anyone with an interest can ask the court to correct:

• a mistake or omission in these formalities;
• a clerical or arithmetical error in the will.

The court makes the correction only if it is satisfied and finds it just, and the corrected will is then valid from the day it was signed. This applies to a will of any date, as long as a court had not already set it aside for good before the 2015 amendment. The formal requirements, including who may act as a witness, are described in our guide to making a will in Cyprus.

Lack of capacity

The testator must have been at least 18 years old and of sound mind at the time of signing. Where illness or medication had taken away the testator's understanding of what the document did, the will can be set aside. Medical records and the accounts of people who saw the testator around the date of signing carry the most weight.

Undue influence

A will must record the testator's own wishes. A will, or the part of it affected, that was obtained by coercion or undue influence is void.

Undue influence has a narrow meaning in Cyprus law: a person whose relationship with the testator lets them dominate the testator's decisions uses that position to gain an unfair advantage.

Forgery

The court sets aside a will with a forged signature. The usual evidence is a comparison of the signature with genuine examples and the testimony of the witnesses who signed the will.

Fraud and knowledge of the contents

A will, or any part of it, obtained by fraud on the testator is void (Article 29 of Cap. 195).

The Administration of Estates Rules allow two further pleas, the grounds a party may argue in the court case, in a dispute over a will: that the signing of the will was obtained by fraud, and that the testator did not know and approve of its contents. The second plea covers a testator who signed without understanding what the will said.

When to act

An action to set aside a will, and a claim by an heir or legatee (a person left a gift in a will) on the estate or a share in it, must both be brought within eight years of the testator's death (Limitation of Actionable Rights Law, Law 66(I)/2012).

For a claimant who was abroad, the period does not close until a year after they learned of the death or returned to Cyprus. A claimant abroad cannot rely on not knowing of the death if they could have learned of it with reasonable care.

The eight years start later or stop running in several cases, among them:

• where the claim rests on fraud by the other side, or on a fact the other side deliberately hid, they run from when the claimant found it out or could have found it out with reasonable care;
• between an executor or administrator and an heir or legatee who is a minor, they do not run until the minor comes of age.

A separate claim that an heir is unworthy to inherit must be brought within three years of the death. An heir is unworthy if, for example, they caused the testator to make or revoke a will by coercion, fraud or undue influence, or submitted a forged will, or unlawfully altered or destroyed a will.

The burden of proof

The person who asks the court for a grant (the court document that lets an executor or administrator deal with the estate) on the strength of the will has to prove that it was properly signed and witnessed. In a contested case that person calls at least one of the witnesses who signed the will, where one is available; if none is available, the court needs a satisfactory explanation.

A full attestation clause, a statement signed by the witnesses that the will was signed in their presence, raises a presumption that the will was signed properly, and the court needs the strongest evidence to find otherwise.

A challenger who says the testator lacked capacity has to bring at least some evidence of it that the court accepts before the other side must prove the testator was of sound mind.

A will that gives away more than the law allows

If a will gives away more than the law allows under the forced heirship rules, the court does not set it aside: it cuts the gifts back in proportion so the statutory heirs receive the shares the law reserves for them.

The disposable portion (the part the testator may leave freely) is one quarter of the net estate where the deceased leaves a child or a child's descendant, whether or not a spouse survives. Where the deceased leaves a spouse or a parent but no child or descendant of a child, it is one half. Without any of these close relatives, the whole estate is disposable.

No reduction is made where the deceased leaves a spouse but no child, descendant or parent, and the gifts that exceed the disposable portion went to that spouse. The shares and the intestacy order are explained in our guide to Cyprus succession law.

Gifts to witnesses

A gift in a will to a witness, or to that witness's spouse or child, is void (Article 25). The witness loses the gift, and the rest of the will stands.

Revocation by a later marriage or child

A will is revoked automatically if the testator marries after making it, or if a testator who had no children when the will was made has a child after making it (Article 38 of Cap. 195). The will stands where it shows it was made with that marriage or birth in mind. An heir who proves the later event does not have to show any defect in how the will was signed.

How a challenge is brought

Most disputes surface at the probate stage. A person who intends to challenge a will enters a caveat at the probate registry, stating their interest in the estate.

A caveat is a notice at the registry that stops the grant from issuing. Banks release nothing without a grant. The block falls away where the caveator (the person who entered the caveat) withdraws it, brings no action for three months, or the court orders the grant to issue.

The executor named in the will has the first right to the grant. A person with a better right, such as that executor, loses priority to another applicant where they:

• have renounced it;
• have not entered a caveat within seven days of being served notice of the other application;
• live outside Cyprus or cannot be found.

The court can still direct otherwise in special circumstances. Where two people apply for the grant, the second cannot file a competing application before the first is decided, and enters a caveat against it instead.

In a contested case the court decides, in an action between the applicant and the caveator, whether the grant should issue, and tries the validity of the will in that action on the pleas the Administration of Estates Rules list, or others with the court's leave.

Revoking a grant and recovering property

A grant that has already issued can be recalled or revoked by the court (Cap. 189).

Payments and transfers made in good faith to the executor or administrator before a grant is revoked stay valid. During the case, the court can place the estate with an administrator who acts under its direction until the dispute is decided.

After distribution, property can be claimed back from anyone who received it except a buyer, which is slower and harder.

What happens when a challenge succeeds

A will set aside in full is treated as never made. The estate then passes under an earlier will still in force or, where none exists, under the intestacy rules of Cap. 195. A partial success leaves the will standing with the offending gift removed or reduced.

Our role in will disputes

Our wills and probate lawyers in Cyprus act on both sides of these disputes: for heirs who believe a will does not record the testator's wishes and for executors defending the grant. We review the will and the circumstances of the signing, obtain the medical and property records, advise on the prospects before anything is filed, and conduct the proceedings before the court. We work with clients in Cyprus and abroad, in English and Russian.

We act on fixed fees agreed in advance, not hourly billing. Contact us for a complimentary personal consultation.