Invalidity of a Will due to Contrary to Good Morals

LEGAL INSIGHT

March 2019

George Kefalas, LL.M. (mult.), Μ.Sc.

Christina Koliatou, LL.M, PgCert

Summary: Very often the heirs of a deceased testator are faced with unexpected situations when the contents of the testator's will are revealed. They may be unduly restricted to a very small part of the estate or find that the whole of it is left to a third party outside the family. It may also be that the entire content and provisions of the will reveal the testator's complete disregard for his family or even his vindictive, often unjustified, tendencies. In such cases, it is often asked whether the last will of the deceased should be accepted or whether the heirs can override it. This article, therefore, examines cases where such phenomena have led to the courts annulling the will in favour of the deceased's immediate family. 

1. Introduction

Not infrequently wills are annulled by our courts as "immoral" or, in the legal terminology, as "contrary to morality". But when is a will contrary to good morals and what are the consequences of such a conflict? It is accepted by our courts that the prevailing notions of morality in society can place restrictions on the freedom which the testator has in principle to decide how to distribute his property after death. Thus, for example, it is considered immoral for the testator to leave almost all of his property to his extramarital sexual partner in return for the carnal pleasures she provided him during his lifetime, while limiting his wife and children to the minimum percentage set by law. Such situations are examined in this article, presenting illustrative cases of covenants that have been ruled "immoral" by the courts, and the consequences of such a ruling. The presentation can only be illustrative, as cases of immorality are clearly diverse. 

2. The concept of the rules of morality and the restrictions they place on the freedom of the disposer.

Under our inheritance law, the testator is in principle free to leave his property to any persons and in any manner he wishes. Restrictions are placed only on the persons in his immediate family, where the law stipulates that they must receive a minimum portion of the deceased's estate ("legal fate").

However, this freedom of the testator to regulate his succession in the way he wishes is not unlimited, but must be exercised within the limits of good morals, i.e. the rules of morality. But what is the concept of good morals and what criteria are used to determine it? Good morals are essentially the moral concepts that are formed in a society at a particular time and place. The criterion of morality is the moral sentiment of the generally accepted average prudent person at a particular time and place. In other words, it is not the morality of the deceased testator himself, but that of the average person living in the same social circumstances as the testator. In order to determine whether a will is contrary to the rules of morality, the courts take into account many factors, in particular: a) the content and b) the effects of the will; c) the reasons which prompted the testator to make it; d) the purpose which he or she pursued; and e) in general, all the circumstances and conditions surrounding it. Below, we set out a variety of cases of wills contrary to good morals, which are found in the decisions of our courts, together with the way in which each case is dealt with. In more detail:

3. Indicative cases of 'immoral' wills 

a) The most common, in practice, case of a will being contrary to morality concerns provisions in favour of an immoral or obscene person with whom the testator had extramarital sexual relations. In this case, the will in question is not considered 'immoral' from the outset, but it is also required that the property be disposed of solely as a reward for the sexual relations between the testator and the third person, either for their maintenance or for their resumption, in a way that is contrary to generally accepted moral values and in unjustifiable contempt for persons in the testator's immediate family. Thus, for example, the testator is free to associate during his lifetime with a person outside his family and to leave to that person in his will the greater part of his estate. Such a will, initially, is not contrary to the rules of morality. But if the deceased made such a will because that person threatened him that he would abandon him if he did not leave him his property, then such a will is contrary to morality. In a similar case, therefore, where the testator left all his property to the child of the partner with whom he had sexual relations, solely as a reward for the sexual services he provided him, so that the partner would not abandon him, but in contempt of his brother in life, to whom he left nothing, the Court of Appeal of Thessaloniki acknowledged the invalidity of the relevant provisions of the will, holding that they were contrary to morality because they were made solely as a reward for the deceased's partner, so that he would continue to provide him with carnal services, thus showing the testator's unjustified contempt for his family.

b) Another category of frequently encountered cases of "immoral" testamentary dispositions is when the testator's will shows unjustifiable contempt for his legitimate family, which, in combination with the other circumstances, is evidence of moral perversion or forfeiture on the part of the deceased. In this case, usually, without reasonable cause, a very small part of the estate is left to the members of the deceased's family. Thus, in a relevant case, where the deceased left most of his property to a nursing home, limiting his wife and children to a very small part of it, despite the fact that throughout his life the latter had never shown any reprehensible behaviour towards him, the Nafplio Court of Appeal, sitting in three chambers, recognised the invalidity of the will in question, noting the moral decline and lack of charitable feelings of the testator, since, despite the fact that the members of his family had never given him any relevant reason while he was alive - in fact, they tried many times to contact him -, he, after leaving the family home, despised them without justification and was generally moody and insulting towards them.

c) Another case of "immoral" wills concerns provisions of the deceased, who seeks to influence the will of the heir on matters relating to the core of his or her personality and to bind his or her freedom excessively, for example in the choice of profession or field of study, in the choice of a spouse, or marriage in general, or even in the permanent settlement in a certain place, etc. In a related case, where the deceased, in his will, left his property to his son, provided that the latter was to marry and have a legitimate child, the Athens Multi-Member Court of First Instance recognised the invalidity of the relevant provisions of the will in question, holding them to be contrary to morality, because the specific condition imposed by the deceased testator excessively restricted the freedom of his child, in matters which, according to the prevailing moral concepts in society, were exclusively a matter of his free will. 

d) In addition to the above categories, it is worth pointing out that each case is judged by the courts on its own merits, as it is always a different sequence of facts which may lead to the annulment of a will which would otherwise be considered valid. By way of illustration, in a typical case where, at first sight, the content of the deceased's will did not indicate a judgment on its contrary to morality, but ultimately, after examination of the other circumstances and circumstances surrounding the case in question, the will in question was declared to be immoral. In particular, in this case the deceased initially divided her estate between a woman who looked after her until the end of her life, a charitable foundation and two persons with whom she was morally linked (because they had taken her husband away after the war). Subsequently, in a subsequent will, the deceased reversed the previous will, leaving all her property exclusively to the woman who looked after her until the end of her life. In the present case, the Court of First Instance of Tripoli held that the latter will was contrary to morality on the basis of its content and the reasons which led the testatrix to make it. In particular, given that the persons to whom the testatrix had initially left part of her estate had helped her husband to escape from captivity, with the result that she was grateful to them, while at the same time, during her lifetime, the testatrix had been engaged in charitable work, the court, taking into account all of the above circumstances, and in particular the influence exerted on the testatrix by the woman who looked after her, acknowledged the invalidity of the latter will on the ground that it was contrary to the rules of morality, essentially confirming the content of the original will. 

4. Consequences of the characterisation of a will as contrary to morality

Where the courts find a will to be contrary to morality, they recognise that the will is invalid, with the result that the will in question is deemed never to have been drawn up and therefore does not exist. Thus, the provisions of inheritance law on intestate succession apply (unless there is an earlier valid will, in which case the latter applies). In simple terms, in this case, the deceased's estate will be distributed to the persons of his family in the manner laid down in our Civil Code, i.e. the deceased's legal spouse and children will inherit the whole of his property, and if there are no children, his parents will inherit in place of the children. 

5. Instead of an epilogue

Our legal system guarantees the testator's freedom to leave his/her property as he/she wishes, with some restrictions as to a minimum percentage to be inherited by his/her spouse and children ("legal fate"). However, this freedom does not cover cases where the way in which the deceased disposes of his or her estate is in direct conflict with the moral rules prevailing in society, with the result that the concept of morality, a concept which is necessarily fluid, often completely upsets the distribution of the estate.