RESTRICTION OF THE FREEDOM OF DISPOSAL OF ASSETS THROUGH A WILL FOR THE BRITISH SUBJECTS , EFFECTS AND SOLUTIONS
On the 3rd of July 2015 the amendment of the legislation concerning Wills and Succession Law 96 (Ι)/2015, was published complying with the European Rule ΕΕ650/12. It’s basic provision is the abolition of the article 42 of the basic Law which concerned the absolute freedom of disposal in certain cases (mostly British subjects). Article 42 is deleted (without though a relevant amendment of article 41 which is reserved in favour of article 42) without provision for the retrospective force of the law or not and without referring to the issue of the governing law and the time (time of signing of the will or time of death) which is important.
As a result the application of article 41 which regulates the disposable share of the property of the disposer is finally widened in all cases.
During the discussions at the Cypriot Parliament and the voting of the MPs of the relevant bill of law there were different opinions. Many MPs supported the view that the absolute freedom of disposal should not be abolished as Cyprus must be a friendly country of residence for the retired and the foreign businessmen. At the end the opposite views prevailed and article 42 was completely deleted.
This development changes completely the legislative landscape in which the British subjects were taking advantage of the positive legislation doing wills in Cyprus.
The above amendment, as it lacks of a transitional provision, in relevance to the abolition of article 42, is valid from its publication and is has no retrospective force. So, it could be easily supposed that Wills formed before Law 96(I)/15 that is before 03/07/15, having in mind the old article 42, would not be under the restriction of disposal.
This hypothesis though is not easy to be made, because in the Law for wills and succession, we have article 36 which clearly states that “every will is interpreted in relevance to the inheritance which is included in this will, that it is valid and enforced as it was executed immediately before the death of the disposer, except if the opposite intentions is appeared”. So if it is diagnosed which Law governs and is valid during the death of a British disposer, we have to do the test of which law is the governing law at the time of his or her death and what is the law valid at the time of the signing of his or her will.
In order for the above dilemma to be avoided the British and other European subjects must take advantage of the European Regulation 650/12 which states that “a person may choose s the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of the death”.
Having said the above, the British Citizens can choose in their will the Law which will govern their last will and testament to be the UK Law since the UK decided not to follow the above EU Regulation.