clr/1981/1981_1_349.pdf

(1981)abolition of the provision relating to the reduction and abate­ ment in the case of a person who dies leaving aspouse butno child or descendant of a child and nofather or motherandpart of the estate in excess of the disposable portion, which could be the whole estate, was left to the surviving spouse. 5 In an action by the nephews and nieces of the deceased for an order that the estate be distributed in accordance with the provisions of the above law the trial Court, being satisfied that having regard to the clear andunambiguous language of thewill and the strong words used in connection with the bequest of 10 the whole of the estate to the wife, inspite of thelimitation!-of the law as it stood before it was amended,theclear intentionof the testatorwas that hiswife should take everything totheexclu­ sion of everybody else,and that after theamendment of the law any alteration of the will was superflous arid as a will does riot 15 confer any rights until after the testator's death, dismissed the action. Hencethis appeal which was argued on the sole point of the effect, if any, of the amendment of the law betweenlhe date of thewill and thedate of the death of thetestator: Held,thai a will unless a contrary intention appears therein 20 must be construed,with reference to the realestate andpersonal estate comprised in it to speak and take effect as if it hadbeen executed immediately before the deathof the testator (see,also, section 36 of Cap. 195); that the intention of the testator as declaredby himandapparentinthewords ofthewill,if consistent 25 with thelaw, shall prevail;that,therefore,inall thecircumstances, the wife of the deceased is entitled to thewhole of his estate as sole beneficiary under his will; accordingly theappeal must fail (pp. 354-56 post). Appealdismissed 30 Cases referred to: Hodgsonv. Ambrose[1870] 1 Doug. K.B. 337; 99 E.R. 216; Beddingtonand Another v. Baumann and Another [1903]A.C. 13 at p. 16; Perrinand Othersv. Morgan andOthers[1943] 1 All E.R. 182 35 at p. 190; Blathwayt v. Lord Cowleyand Others [1975] 3 All E.R. 625 at p. 641; Antoniades and Another v. Solomonidou

(1980)1 CX.R.

1. 350 1 C.L.R. Ioannoa and Others v. Marcou Appeal. Appeal by plaintiffs against the judgment of the District Court of Nicosia (Stavrinakis, P.D.C. and Artemides,. D.J.) dated the 25th September, 1975(Action No.5018/74) whereby 5 their claim foi.a declaration against .the-.validity of the will of the late Theocharis Christou was dismissed. A. Triantafyllides, for the appellants. C. Myrianthiswith D.. Georghiades, for the respondent. Cur. adv.vult. 10 L. Loizo" J. read the following judgment of the Court. This is an appeal against the judgment of the District Court of Nicosia dismissing plaintiffs' claim in Action No. 5018/
2. By the said action, the plaintiffs—appellants in this Court— whoarethenephewsand niecesofthe late Theocharis Christou, 15 against the defendant—respondent in the appeal—as executor of thewillof thesaid deceased prayed for a declaration against the validity of the will, an.order restraining the defendant from in any waydealingor interfering with theestate, an order appointing the plaintiffs or any ont of them as administrators 20 of the estate and an order for the distribution of the estate in accordance with the provisions of the Wills and Succession Law, Cap. 195 (hereinafter to be referred to as the Law). There was no dispute at all as to the facts so much so that neither party called any evidence. 25 The lelevant facts are as follows: The deceased made a will on the 10th June, 1965, leaving all his estate to his wife Maria Theocharous and appointing as executor the defendant. He died on the 18th March, 1974, without revoking or amending the said will, leaving.as his only 30 beirs his wife and the plaintiffs. The relevant section of the Law at the time of the making of the will was s.
3. Under the provisions of the said law, as it then stood, a person dying leaving a spouse or a father oramotherbutnochildordescendantthereof couldnotdispose 35 by will more than half of the net value of his estate and any disposition in excess of the disposable portion ought to be reduced and abated proportionately so as to be limited to the disposable portion. 351 L. Loizou J. Ioannou and Others v. Marcou

(1981)In 1970, s. 41 of the Law was amended by s. 2 of Law 75 of 1970 by the addition of a proviso thereto the effect of which was the abolition of the provision relating to the reduction and abatement in the case of a person who dies leaving a spouse but no child or descendant of a child and no father or mother and the part of the estate in excess of the disposable portion, which could be thewhoseestate, was left tothe surviving spouse. 5 It is pertinent to set out the will in question. It reads as follows: " Ή τελευταία ΔΙΑΘΗΚΗ έμοϋ τοϋ ΘΕΟΧΑΡΗ ΧΡΙΣΤΟΥ έκ Κάτω Λακατάμια5 νϋν Λευκωσίαν, γενομένη σήμερον την ΙΟην ήμέραν τοϋ μηνός Ιουνίου,

1. 10 Ι...... Διά της παρούσης μου ανακαλώπδσαν προγενεστέρως υπ* έμοϋ γενομένην διαθήκην. 2 Δίδω καΐ κληροδοτώ απολύτως είς την σύζυγόν μου 15 -Μαρίαν θεοχάρους το γένος Μιχαήλ Φαρίδη έκ Λευκωσίας πασαν τήν κινητήν καΐ άκίνητον περιουσίαν μου εΰρισκομένην έν Κυπρω. 3 Διορίζω έκτελεστήν της Διαθήκης μου ταύτης τον έκ Καΐμακλίου οδός ΜαραΘώνος No. 3, Μάρκου Χρ. Μάρκου. 20 (Ύπ.) Θεοχάρης Χρίστου 10.6.
2. Υπεγράφη υπό τοΰ ρηθέντος Θεοχάρη Χρίστου έκ Κάτω Λακατάμιας νϋν Λευκωσία, έν Οψει καΐ παρουσία ημών πάντων παρόντωνταυτοχρόνως,οΐτινες ένόψει καΐ παρουσία 25 1 του, κατ έντολήν του καΐ παρουσία αλλήλων ύπογράφομεν τά ονόματα μας ώς έπιβεβαιωταΐ μάρτυρες. (Ύπ.) Βάσος Βιτσαίδης, Χ" Γιωρκάτζη Π, 'Ay. Παύλος. 'Ανδρέας Μάρκου. 30 Άρεδιοϋ". ("This is the last will of Theocharis Christou of K. Lakatamia now Nicosia made today the 10th day of June,
4. By the present I revoke every will previously made by me.
5. I give and bequeath solely to my wife Maria Theo352 35 1 C.L.R. Ioannou and Others v. Marcou L. Loizou J. charous nee Michael Faride of Nicosia all my movable and immovable property situate in Cyprus. 5 10
6. I appoint as executor of my will Marcos Chr. Marcou of Kaimakli, Marathon Str. No.
7. (Sgd) Theocharis Christou 10.6.65 Signed by the said Theocharis Christou of K. Lakaiamia now Nicosia in our presence, all being present at the same time, who in,his presence, on his instructions and in each other's presence signed our names as attesting witnesses. Vassos Vitsaides Hji Yorkadji 11, Ay. Pavlos \ndreas Markou Aredhiou") 15 At the hearing of the case before the trial Court learned counsel for the appellants abandoned all prayers contained in the writ of summons and the statement of claim except the one relating to the distribution of theestate under theprovisions" of the law; and this was the only issue that the trial Court had 20 to decide. Thecasefor theappellants wasthat the relevant lawin putting into effect the will isthe law in force at the time of the execution of the will and not the law in fcrce at the time of death but conceded that this would depend on the intention of the testator. 25 On the part of the respondents, on the other hand, it was contended that the law applicable in putting into effect the will should be the law in force at the time of the death of the testator as the will is purported to be made at the time of his death and this in view of the provisions of s. 36 of the Law. 30 The gist of the argument of learned counsel for the appellants in support of their case was that the testator is presumed to know the law and, therefore, the deceased is presumed to have known, at the time of making hiswill,that by leaving everything to his wife in effect he was leaving to her three quarters of his 35 estate the other one quarter going to his other heirs and that the testator, if he really intended to give hiswife everything, he he might have made, after the amendment of the law, a codicil 353 L. Loizou J. Ioannou and Others v. Marcou

(1981)reaffirming thewilland sincehefailed todosoitcan be inferred that his original intention remained unaltered. Thetrial Court being satisfied that having regard to the clear and unambiguous language of the will and the strong words used in connection with the bequest of the whole of the estate 5 tothewife,inspiteofthelimitationsofthelawasitstood before it was amended, his clear intention was that his wife should take everything to the exclusion of everybody else and that after the amendment of the law any alteration of the will was superfluous and as a will does not confer anyrightsuntil after 10 thetestator'sdeathdismissedtheaction. Againstthatjudgment the plaintiffs now appeal on various grounds. The point on which this case was argued on appeal was the effect, if any, of the amendment of the lawenacted between the date of the will and the date of the death of the testator. 15 The contention of learned counsel for the appellant, briefly, wasthat since at the time of the making of the will under the provisions of the law in force the part of the estate over and above the disposable portion would be reduced and abated for thebenefit of the other heirs and sinceafter the amendment 20 of the law he did not doanythinginrelation tohiswillhemust be presumed to have intended that his lawful heirs would get the one quarter of his estate and that, therefore, the law applicable should be the law in force at the time of making thewill and not that in force at the time of his death. 25 In deciding thisissuein the present case weconsider it useful to refer to s. 36oftheLawtowhichreference hasbeenmade. It reads as follows: "36.Every will shall be construed, with reference to the estate comprised in it, to speak and take effect as if il had been 30 executed immediately before the death of the testator, unless a contrary intention shall appear by the will". Very similar to our s. 36 is s. 24 of the Wills Act, 1837,in England which reads as follows: "Every will shall be construed, with reference to the real 35 estate and the personal estate comprised in it, to speak and take effect as if it had been executed immediately 354 1 C.L.R. Ioannou and Others ?. Marcou L. Ixiizou J. before thedeath ofthetestator, unless a contrary intention shall appear by the will". In Halsbury's Laws of England, 3rd ed., p. 1012,para. 1533 it is stated in relation to s. 24 of the English Act that a will 5 unless a contrary intention appears therein must be construed, with leference to the real estate and personal estate comprised init"tospeakandtakeeffect asifithad beenexecuted immediately befoie the death of the testator". The above statutory provisions, however, as clearly stated 10 therein, expressly relate only to the property comprised in the will with the result that ifthe thing given isgeneric, so that the descriptions made from time totimeapplytodifferent amounts ofproperty.of likenature orto different objects and thetestator acquired further property of the same kind subsequent to the 15 will, such property, unless a contrary intention appears, passes under the will. But this question does not arise in the present case which, inourview,hastobedecided solelywith regard tothe intention of the testator. 20 In Halsbury's Laws of England, 3rd ed., vol. 39, p. 950, paia. 1438wherereference ismadeto thefunctions ofthe Court in construing a will it isclearly stated that "the intention of the testatoi, as declaied by him and apparent in the words of the will,has effect given to it, so fai and as nearly as may be con25 sistent with law". In the above paragraph leference is made to a case decided twocenturiesagowhichwassubsequently affirmed bytheHouse of Lords: It isthe case of Hodgson v.Ambrose [1870], 1 Doug. K.B. 337;99 E.R. 216; Buller, J. had this to say in the course 30 of hisjudgment: "There isno rulebetter estabhshed than that the intention of a testator expressed in his will, if consistent with the ruHs of law, shall pievail. That is the first and great rule in the exposition of all wills; and it is a rule to which all others must bend. It says, 'if consistent with the rule of law'; 35 but it must be remembered, that those words are appUcable onlytothenature andoperation oftheestateorinterestdevised, and not to the construction of thewords But the question, whether the intention be consistent with the 355 L. Lolzoo J. Ioaimou and Others v. Marcou

(1981)rules of law or not, can never arise, till it is settled what the intention was". In Beddigton and another v. Baumann and another [1903] A.C. 13 the Earl of Halsbury L.C. said this (at p. 16): "Of course, the broad proposition which Cozens-Hardy L.J., lays down cannot be doubted: 'When vou are dealing with a will you are dealing with an ambulatory instrument, and it operates nothing and can operate nothing till it becomes consummated by the death of the testator—it must wait till then/ " In Perrin and Others v. Morgan and Others [1943] 1All E.R. 182 Viscount Simon L.C, said (at p. 190): 5 10 "My Lords, the fundamental lule in construing the nature of a will is to put upon the words used the meaning which, having regard to the terms of the will,the testator intended. The question is not, of course, what the testator meant 15 to do when he made his will, but what the written words he used meant in the particular case—what are the 'expressed intentions' of the testator". And in the more recent case of Blathwayt v. Lord Cawley and Others[1975]3All E.R. 625at p. 641Lord Cross said thefollow- 20 ing: "If the testator has said something clearly and unambiguously, one must give effect to it even though one may strongly suspect that he did not mean to say it". Before concluding this judgment we may usefully refer to a 25 case decided by this Court quite lecently and in which a very thorough and lucid review of the authorities on the subject, including the last three cases quoted above, is made. It is the case of Antoniades and Another v. Solomonidou

(1980)1 C.L.R., 441. In the light of all the foregoing we find ouiselves in full agreement with the conclusion reached by the trial Court that, in all the circumstances, the wife of the deceased is entitled to the whole of his estate as sole beneficiary under his will. In the result this appeal is dismissed. With regard to costs 35 we, same as the trial Court and for the same reasons, order that they be paid out of the estate. Appeal dismissed. Costs out of the estate. 356 30