[*549] 1986 July 5
(HADJIHAMBIS, D.J.)
IN THE DISTRICT COURT OF LIMASSOL
Christopher John Young and Another,
Plaintiffs,
v.
Derek Sidney Hopkins and Others,
Defendants.
(General Application No. 36/86).
Conflict of Laws - Wills - Formal validity of, in so far as it relates to immovable property - Governed by Lex situs.
Conflict of Laws - Immovable property - Succession to - The Wills and Succession Law, Cap. 195, section 5 - It is not merely a rule of internal law, but, also, a rule of conflict of laws - The Law applicable in respect of succession to immovable property situated in Cyprus, where the deceased is not domiciled therein, is Cap. 195.
Wills and Succession - Wills - The Wills and Succession Law, Cap. 195, section 23 - Failure of testator and attesting witnesses to initial or sign all the sheets of the will - Will invalid.
A. Adamides, for Applicants-Plaintiffs.
Respondents-Defendants, absent.
RULING
The following ruling was delivered by:-
HADJlHAMBlS. D.J.:- This summons was taken out by the applicants-plaintiffs for the determination of the following question arising the context of the administration of the estate of Denis Alfred Furzey:
(a) Whether the will of Denis Alfred Furzey late of 44, Durban Rd West Watford, Hertford, England, dated 29th July 1983, consisting of more than one sheet of paper not all of [*them signed or initialled by or on behalf of the Testator and the witnesses, as regards the disposition of immovable property in Cyprus, is valid.
(b) If the question under (a) above is answered to the negative, whether the immovables of the estate in Cyprus would devolve according to the Cyprus Law of intestacy or otherwise.
As is evident from the question raised under (a) above, the present issue arises by reason of the fact that the deceased's will, a certified photo-copy of which is before me as part of a file Exh. 1, though signed by the Testator and the witnesses at the end thereof, is nevertheless not signed or initialled by the Testator and the witnesses on the pages preceeding the last page, the will consisting of three pages on two sheets of paper of which the one sheet comprising pages 1 and 2 bears no signatures or initials.
The first point for consideration in this respect relates to the question of the applicable conflicts rule as regards the formal validity of a will of immovables. As to this, there seems to be no relaxation in Cyprus of the Common Law rule that the formal validity of a will, to so far as it extends to immovables, is
governed by the lex situs. The relaxation of this rule is England
brought about by the Wills Act 1963 certainly does not affect the
position in Cyprus. Furthermore, I would, if I had to consider this point, tend to agree with Mr. Adamides who argued that section 5 of the Wills and Succession Law, Cap. 195 of the Laws, which provides that:
”5. This law shall regulate -
.......................................................................................................................................
(b) the succession to immovable property of all persons not domiciled in the Colony". [*
Provides and includes not merely a rule of internal law but also a rule of the conflict of laws whereby the succession to immovable property situated in Cyprus of persons not domicile here is governed by Cyprus Law.
Seeing that the formal validity of the will in this instance must be judged in accordance with the law of Cyprus where the immovables in question are situated, the matter is governed by section 23 of Cap. 195 to the effect that:
"23. No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned, that is to say –
……………………………………………………………………………………………………..
(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".
According to the decision of the Supreme Court in Charalambous v. Demetriou. 1961 C.L.R. 30, the provisions of section 23 on this point are mandatory and failure to comply with them is fatal to the validity of the will. Consequently, seeing that the first and second pages of the will in question were not signed or initialled by or on behalf of the testator and the witnesses as specified by section 23, the Court cannot but reach the conclusion that the will in question in so far as it affects immovables is not valid.
Nor does it seems that the will can be saved by the Convention providing a Uniform Law on the Form of an International Will (Ratification) Law, 1980, in so far as, Mr. Adamides has argued, there does not seem to have been compliance with the provisions of articles 1 to 5 of the Annex in that there does not appear to be a declaration under article 4 by the testator in the presence of the witnesses and the person authorised, nor does it [*appear that the will was under article 5 signed by the testator in the presence of the person authorised or attested by such person; let alone that there is no evidence before me as to whether the said Convention was ratified and applicable in England at the relevant time. Furthermore, article 6 of the Convention provides that if the will consists of several sheets each sheet shall be signed by the testator, something which has, again, not been done in the instant case and which, as at present advised, I might, if I had to consider the matter regard as an additional reason for the invalidity of the will.
In so far as the answer to the question raised under (a) in the application is in the negative, it must follow as to the question raised under (b) thereof the answer must clearly be that the immovables of the estate in Cyprus shall devolve according to the Cyprus Law of intestacy in so far as, again, under section 5 it is clearly provided that the succession to immovable property of all persons not domiciled in Cyprus shall be governed by the present law, that is the Wills and Succession Law, Cap. 195 of the Laws.
Order accordingly.