A Brief Explanation on the Complex Issues of
The Law of Succession and Making a Will in Cyprus
By Mr. Harris P-Sharpe LLB (Hons), LMU, Barrister at Law Cyprus
The article will explore the basic principle and implication of the relevant law from a legal point of view. These basic principals shall be further explained by fictional scenarios, structured as to communicate to the reader the various complex issues. Please note that this is only an article aimed to inform the curious mind and not a legal opinion, we are paid for those.
If in doubt, please do not hesitate to come in contact with us. Thank you.
A Word to the Reader
Please note that; throughout the article defined terms are used, this is not to make your reading and understanding more difficult but rather to avoid repetition of lengthy names or phrases. When a defined term is used the first letter shall be in Capital as so to indicate to the reader that this term has been defined earlier in the article, i.e. on page 3 "Movable Property and Immovable Property" (Both defined terms) and when considered together shall be referred to as the "Estate" (A third defined term).
The Law of Succession
Although, once identical to the Laws of the United Kingdom (prior to 1960) the Parliament of Cyprus has amended the Law of Succession and Wills, Cap 195 of the Laws of Cyprus (from hereon referred to as the "Law of Succession") to reflect international requirements and standards.
Tthe Law of Succession is interpreted by way of cases, which are called presidents, henceforth allowing people to rely upon them in the future.
The Law of Succession is the parliamentary instrument enacted so as to govern all matters relating to the documents (the "Will") that will communicate the final wishes of the deceased and the succession of, movable property and immovable property.
Movable and Immovable Property Explained
Before proceeding I would like to clarify, that movable property might take various forms such as goods, money held in bank accounts or cash, stocks, shares, bonds, debentures, cars, items of value, precious stones and metals.
The law of Immovable Property (which deals with all matters relating to Immovable property) defines Immovable Property as land, buildings or structures fixed to that land, rights to land or buildings and others, the previous definition is adopted in the Law.
The clearest distinction can be seen when contrasting movable property to immovable property by stating that Movable Property is anything other that Immovable property.
Movable Property and Immovable Property when considered together shall be referred to as the Estate.
In order for Cyprus Law of Succession to apply, two requirements are needed:
The Domicile Requirement
The word "Domicile" is derived for the Latin word "domicilium" meaning place of residence. In general, there is no clear-cut legal definition of the word domicile, and for this we will try to interpret it, as we understand the definition.
The criteria by which a person's domicile is determined is based upon her/his thoughts and intentions; it is proven by the acts' carried out based upon those thoughts and intentions. Subject to the Law of Succession, the persons Domicile is determined at the time of death. Please note that your domicile can be determined prior to death but not for reasons of succession of Estates.
The primary reason of your acts must be the "intention to permanently reside at one specific geographic location". This does not mean that you have to be living at the same place all the time, nor does it mean that you do not have a domicile if you constantly live in two or more different jurisdictions.
Basically though, domicile is that place in the world that you call home.
In general, we are all born with a domicile "domicile of birth" that we are attached to throughout our lives and unless we choose to discard it for a "domicile of choice", your domicile of birth is your domicile upon death.
The Residence Requirement
In the following examples, we will see that a physical residence is required to be present.
A place of residence is fundamental and cannot be ignored. The residence does not need to be owned it can be a rented studio apartment or even a hotel apartment that you are briefly staying in until you get together with the developer and sign your contracts.
Examples to Illustrate the Above
a) James was born in United Kingdom; he has won the lottery and decides to leave the United Kingdom. Acting upon his decision, he and his family sells everything and moves all his money to a Cypriot Bank and starts buying immovable property in Cyprus. He brings all his family and close relatives to Cyprus and has a big party in his new sea-front villa as soon as his last relative arrives (the party is held because he wants to celebrate and announce to the family that they will be living permanently in Cyprus). Two years after the party and subsequent to the opening of a franchise of fish and chips shops, James passes away.
Comment: James has acted upon his intentions and has discarded his domicile of birth and obtained as a domicile of choice, Cyprus. The Law of Succession of Cyprus should apply.
b) Mandy was born in United Kingdom, she is a golfer and owns a golf property in Cyprus, an apartment in Miami and a lodge in Switzerland, and she lives four months of the year in each one of these locations. She does though prefer Cyprus rather than the other locations because of its sandy beaches and the absence of hurricanes on the horizon. The other places she visits just for business. At every chance she gets she mentions this so much that, she got in a argument with her friend Brigit because she said that living in Cyprus is dull and boring. Mandy passed away the next day while in an airplane flying over the Atlantic Ocean.
Comments: Mandy will possibly have obtained the domicile of choice, and although in the above example, the circumstances are equal; what can possibly determine Mandy's domicile is her intention as expressly stated.
Exceptions to the application of the Law of Succession
Immovable Property situated outside the Republic of Cyprus (the legal jurisdiction, that the immovable property is situated in shall govern; not the Law of Succession -lex loci rei sitae-).
Rules as to Succession
The Law of Succession provides and acknowledges that, the immediate family of the deceased should be the persons that are rightfully entitled to the Estate of the deceased.
The Legislator Has Achieved the Above Mentioned Effect by Distinguishing the Estate into
The above is subject to exceptions, which we will consider in the following heading.
The "Distributed" partition of the Estate
The Law of Succession considers the immediate living relatives of the deceased and proceeds to create a tariff that may be distributed; the tariff is illustrated percentage wise on the total value of the Estate.
Exceptions to the Restriction on the Distributed Partition of the Estate
The Law of Succession exempts persons from the above restrictions in the following situations:
a) If a person was born in the United Kingdom or his father was born in the United Kingdom, or persons from any other member state of the Commonwealth, irrespective of that persons domicile (which means that it applies to Movable and Immovable property).
b) In relation to Movable Property of persons that are foreigners and do not have their domicile situated in Cyprus.
The Undistributed Partition of the Estate
Subject to the provisions relating to the Distributed partition of the Estate, the remaining partition of the Estate is distributed amongst the immediate family members according to the provisions of the Law of Succession.
Examples illustrating the above
a) Wesley is married and has two children aged 22 and 27 respectively, under the aforementioned provisions of the Law of Succession, he may only distribute how he pleases ¼ of his estate, the remaining ¾ shall be distributed equally amongst the remaining family members;
b) Phillip is married, after many unsuccessful attempts to have children he has passed away. The only remaining immediate family member is his spouse, under the aforementioned provisions of the Law of Succession he may distribute as he pleases ½ of his Estate, the remainder of the Estate shall be distributed to his spouse exclusively;
c) Susan was a pilot for British Airlines, because she travelled around the world, she had never found "Mister Right" and did not marry. At the age of 105, she is still flying mono-engines (smaller airplanes), on one of her flights she passes away while flying at 15000 feet. She has no relatives. Under the aforementioned provisions of the Law of Succession, she may distribute as she pleases all of her Estate.
A Will is a written document holding the final wishes, after death, of the person creating it. Specific rules are imposed on Wills in Cyprus, as an example, 'inter alia', they have to be written and witnessed, and furthermore they can be revoked, 'inter alia', by express or incidental circumstances which we will not consider in this article. As an example though, if a Will is created prior to marriage, the marriage will render the Will useless.
The Law of Succession does not provide any limitation as to who may draft the Will, but due to strict requirements that are imposed, the best and recommended approach would be to visit or contact a practicing Cyprus Lawyer who may draft and advise you on your Will.
If you already have a Will and you intend to permanently reside in Cyprus, or maintain a bank account with limited assets or you have purchased immovable property in Cyprus, the compatibility of that Will should be verified by a practicing Cyprus Lawyer.
Immovable Property and Wills
Because all Immovable Property in Cyprus is governed by the Jurisdiction of the Republic of Cyprus (inclusive of the North of Cyprus), it would be prudent to discuss the possible succession of your property with your independent lawyer who will be able to advice you.
See Also: Cyprus Property Lawyer | Cyprus Estate Agents | Cyprus Transfer Fees | Cyprus Property VAT | Cyprus Stamp Duty | Cyprus Council of Ministers | Cyprus Property Tax | Cyprus Capital Gains Tax | Bank of Cyprus | Mortgages in Cyprus | Purchase Contract | Cyprus Land Registry | Cyprus Chartered Surveyors | Making a Cyprus Will | Cyprus Title Deeds | Cyprus Certificate Final Approval