DRAFTING A WILL
As a general rule, any person who has reached the age of 18 and is of sound mind may make a valid will. The drafting of a will requires strict adherence to a specific legal form. On the one hand, a valid will must be in writing and must clearly express the testator's intentions. On the other hand, it must be signed at the end by the testator in the presence of at least two witnesses, who, by signing the will themselves, confirm that it was signed by the testator and by both witnesses. It is of critical importance that the will is signed by the testator and both witnesses at the same time and in each other's presence.
Additionally, if the will consists of more than one sheet of paper, a necessary requirement for its validity is that each page must be initialed by the testator and both witnesses. The issue of complying with the statutory form is of particular importance because any failure to do so cannot be remedied, even if oral testimony is later presented in Court.
As for the choice of witnesses, they must simply be legally competent and must not be beneficiaries of the will, nor can their children or spouses be.
DISPOSABLE PORTION OF THE ESTATE
At this point, it is appropriate to explain the distinction between the statutory portion and the disposable portion of an estate. The statutory portion refers to the way in which the relatives of the deceased will inherit in the absence of a will. This is because the Law explicitly defines which relatives are entitled to inherit, the priority among them, and their respective shares.
By contrast, the disposable portion refers to the part of the estate that the testator is allowed to distribute by will.
It is therefore clear that the right to dispose of one's estate by will is not absolute. Only individuals who die unmarried, childless, and whose parents have predeceased them have full freedom to dispose of their entire estate as they wish.
For example, a testator who is married but has no children can only dispose by will of ½ of their estate, as the other ½, by law, must go to their spouse under the statutory portion.
Furthermore, there is an even stricter limitation in cases where, at the time of death, the testator leaves behind a child or descendant of a child. In this case, they may dispose by will of no more than ¼ of their total estate, with the remaining ¾ being distributed to the legal heirs according to the statutory portion.
This legislative provision exists to protect and guarantee the inheritance rights of close relatives.
WHO CAN INHERIT THROUGH A WILL
Bequests may be made to both natural and legal persons, provided they exist at the time of the testator's death. Therefore, such bequests are considered valid and legally binding, even if made under conditions, as long as those conditions are not illegal, immoral, impossible to fulfill, or unreasonably limit the free will of the beneficiary.
A conditional bequest may occur by setting specific requirements for the beneficiaries or making the bequest dependent on their existence. For example:
- A bequest of a property may be conditional on it not being sold for one year.
- Alternatively, a testator may leave their entire estate to their spouse, with the condition that if the spouse is not alive at the time of the testator's death, the estate will go to a specific organization.
However, particular attention must be paid to restrictions on bequests to religious organizations. According to the Law, a non-Muslim testator who has relatives up to the third degree still living may not make such a bequest; if they do, the bequest is void.
An exception exists for bequests made at least 3 months before the testator's death. Therefore, a non-Muslim testator who wishes to leave property to a religious institution, and who has any relatives up to the third degree, must ensure that their will is executed at least three months prior to their death for the bequest to be valid and enforceable.
REVOCATION
The Law explicitly provides for certain situations under which a will may be revoked. The common requirement in all such cases is the intent of the testator to revoke the will.
Revocation can occur in the following ways:
- By drafting a subsequent will, in which the testator expressly revokes the previous one.
- By drafting a new will that is incompatible with the previous one. "Incompatible" here means that the new will expresses a different intent than the previous one.
- By physically destroying the will, either by the testator themselves or by another person acting on their behalf, but always in the presence of the testator.
- If the testator is unmarried and childless at the time the will is made, and later marries or has children, the Law—aiming to protect the inheritance rights of close relatives—automatically considers the will to be revoked.
Christina Papadopoulou-Kiosidou
Lawyer
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