Personal Law-Greek nationals resident ill Sudan-Joint wills=-lrrevocable
agreement for mutual inheritance=Devolution Oil intestacy

Succession-Wills-Joint will-Validity as to jorm in Sudan-Validity as 10 sub-
stance under personal law of Greek residents in Sudan-Effect of irrevok-
able agreement tor mutual inheritance

A Greek husband and wife resident in the Sudan drew a will in whieh
the husband bequeathed £ E.SO to the applicant and all the residue of his
estate to his wife. The wife bequeathed all her estate to the husband.
Each agreed not to revoke or alter the will without the agreement of the
other. Upon the death of the husband the applicant claimed distribution of
the estate as upon intestacy. The trial court directed distribution in ac-
cordance with the provisions of the will, and the applicant applied for revi-
sion on the ground that the will was an agreement for mutual inheritance
which was invalid under Greek law.

Held: It was established by evidence that an agreement for mutual
inheritance was null and void under the Greek law which governed the
validity of the will by reason of section 7 Wills and Administration Ordi-
nance 1928. The joint will contained an agreement binding upon each of
the parties for mutual inheritance, and the wiII was thI-refore without ef-
fect, and the estate should be distributed as on intestacy.

Per Evans R.G.L. dissenting: The will was not a formal agreement
for mutual inheritance (which would have been void) but a natural disposi-
tion of their property by the respective parties. It was therefore valid and
enforceable.

Wills and Administration Ordinance 1928. ss. 6. 7.

Revision

July 7, 1938. Creed c.J.: This is an application for the revision
of an order of the High Court, by which he directed the respondent

* Court: Creed C.1 .. Evans R.G.L. and Flaxman J.

to distribute the estate in accordance with the provisions of a will
dated January 17, 1919. The applicant is a niece of the deceased,
and claims that the estate in the Sudan should be distributed as. on
intestacy.

The facts are briefly as follows. On January 17, 1919 the de-
ceased and Dina K. Voulgaris, his wife, both Greeks resident in the
Sudan, made the following will:

"We, the undersigned, Costi Voulgaris, of Sparta, Greece,
now residing at Wad Medani, Sudan, Husband; and Dina Costi
Voulgaris, of Sparta, Greece, now residing at Wad Medani, Sudan.
'wife; do make this our last will and testament.

I, Costi Voulagaris, the Husband, give and bequeath to my
niece, who is called Eugenia and who is married to Christokakos
and who is residing at Sparta, Greece, the sum of fifty Egyptian
Pounds (£E.50) by way of gift, and I order that nothing more
should be paid to her out of my real or personal estate which will
be found at the time of my death either at Sparta, Greece, or in
the Sudan or elsewhere in the world. All the residue of my estate
whether real or personal which I will leave at the time of my
death either at Ayios Ioannis of Sparta, Greece, or in the Sudan,
or in any other part of the world, I leave to my wife Dina, if she
should be surviving at the time of my death, and I give her full
power and authority to deal with it in any way she likes, without
any of my relatives, or anybody else to interfere.

I, Dina Costi Voulgaris, the wife give and bequeath all of my
property whether real or personal wherever it is found or situate
at the time of my death, to my husband Costi Voulgaris, and I
give him full power and authority to- deal with it in any way he
likes without any of my relatives having the right to interfere or
claim anything from my estate, at the time of my death. We
appoint Mr. Yoannis Volianitis of Khartoum, Sudan, to be our
executor with power to payoff our debts, if any at the time of our
death, and to collect anything which is due to us from anybody
whatsoever at the time of our death, and to carry out our aforesaid
wishes and orders as we wish, direct and order in this our will.

We both agree never to revoke or alter this our last will and
testament unless we both agree to th is effect.

Made this seventeenth day of January one Thousand Nine
Hundred and Nineteen, at Khartoum, Sudan.

(Sgd.) Costi P. Voulagaris (In Greek)
(Sgd.) Dina K. Voulgaris (In Greek)

Witnesses:

(Sgd.) N. Volianitis
(Sgd.) V. Volianitis

In addition to the fifty Egyptian Pounds (£E.50) which I,
Costi Voulgaris, the husband, give to my niece, Eugenia, by way
of gift, I give also and bequeath to my said niece, Eugenia, a
house and garden which I have inherited from my parents and
which are situated at Ayios loannis village, in the Province of
Sparta, Greece, and I direct and order that my said niece, Eugenia
should not alienate the said house and garden by any means, but
it should, after her death, go to her lawful children whether male
or female, equally."

Khartoum, Sudan, 17th January 1919.
(Sgd.) Costi P. Voulgaris (In Greek)
(Sgd.) Dina K. Voulgaris (In Greek)

Witnesses:

(Sgd.) N. Volianitis
(Sgd.) V. Volianitis

It is apparent at once that this is a joint will. A joint will exe-
cuted in Greece is invalid as to form. But under section 6 of the Wills
and Administration Ordinance 1928 joint wills are not forbidden, the
provisions of section 6, have been complied with, and it is clear, and
has not been disputed during the hearing of the present application.
that the will is valid as to form.

As to substance, the law of the Sudan is laid down in section 7 of .
the Wills and Administration Ordinance. It reads in this manner:

"Subject to the provisions herein contained" (i.e., the provi-
sions of section 6 regarding validity as to form) "any question
as to the validity or effect of any will or of any provision in any
will or as to the proper interpretation and meaning of any will
shall be determined according to the testator's personal law or
any valid custom which may be shown to apply to the testator."

It is convenient to consider at once the character of this will.

Not only is the will admittedly a joint wil~ but it is also alleged by the
applicant to be an agreement for mutual inheritance between the de-
ceased and Dina K. Vougaris. No valid objection can under the law
of this country be taken to the will on the sole ground that the will is a

joint will, the fact of it being a joint will being merely a matter of form,
but the applicant goes further and alleges that the will, admittedly valid
in form, is an agreement for mutual inheritance between the two testa-
tors, and that such a will is invalid by Greek law.

This court has bad the advantage of an opinion on the present
will written by Professor Balis, a Greek jurist of great eminence, and
in particular an authority on the Greek law of inheritance, whose quali-
fications to give an opinion are readily admitted by both parties to the
present dispute. In his written opinion, Professor Balis first deals
with the form of the will and then proceeds:

"As regards the contents of the above will, these are also
totally ti.e., in all their provisions) void in Greek law, because
from the beginning to the end the document contains not merely
unilateral declarations of last will, but an agreement between hus-
band and wife to the effect that the one constitutes the o~er as his
heir, and further that only by common consent ean they modify
the will. There is no question in my mind that the contents of
this will constitute what is known as an 'agreement of mutual in-
heritance' which specifically and unequivocally is banned by the
provisions of the Byzantine-Roman law m force in Greece and ad
hoc between husband and wife. Here is what Law No. 5 Code
No.5; 14-Basilica 35 (29.5) provides: 'If the husband enters
into agreement with his wife to inherit her upon her death, such
agreement shall be null and void .. .' Comment: "husband and
wife may not agree to inherit one another." Likewise, and in a
more general sense, Law No.4, Code No.8; 38 (39), Basilica 4
(43.6) and Theodora's comment thereon provide that: 'Some il-
legally agree to inherit" each other.'

Agreements of mutual inheritance are considered void and
unethical in Greek law as being contrary to good morals (contra
bonas mores), because the law requires that the last will (i.e.,
the post mortem disposition of property) must emanate from en-
tirely free and unrestrained intention and must not be the product
of a conventional bond. In the present case it is not at all certain
indeed whether the fact that the will of Constantine Voulgaris
remained unchanged for so many years is due to his unchanged
desire and volition or to the restraint of the marital agreement.

Accordingly the above-mentioned mutual will of the Voul-
garis couple being null and void as to its contents, the deceased

Constantine Voulgaris will be inherited without a will (ab intes-
tato) i.e., in accordance with the provisions of the Greek law of
intestate succession of June 1920. According to this Jaw the heirs
of the deceased arc on the one hand his wife Dina, who receives
one-half of the decedent's estate at larze as well as the furniture
and equipment of the marital home, a~d ·on the other hand the
nearest consanguienous relatives of the deceased, who all to-
gether receive me other half of the whole estate. In the present
case, on the basis of the data furnished, the only next of kin is the
decedent's niece. Eugenia Christokakos. who consequently is en-
titled to one-half of the whole estate, while the other half, together
with the furniture and domestic equipment, accrues to the wife of
the deceased, as already stated."

I accept without hesitation this statement of Greek law, confirmed
as it is by 'other evidence put before this court, and it seems to me that
the only question which requires further comment is as to whether this
court ought. to find as a fact that this will is an agreement for mutual
inheritance.

I have read the will many times. It appears to me impossible to
read it as other than such an agreement. The bequests are mutual.
There is a provision that the testators "agree never to revoke or alter
the will" unless they both agree to this effect. Moreover when an al-
teration to the will was made by codicil, the codicil was signed by the
wife. It has been suggested by the advocate for the respondent that
the provision of irrevocability should be given no weight whatever by
this court, as it is in' the inherent nature of a will under Greek law that
it can be revoked at any time before death. I Be the Greek law what it
may as to the revocability of wills, this provision when read with the
rest of the will is in my view the clearest possible evidence that the will
embodies an agreement for mutual inheritance. I am not disposed to
attach so much weight to the fact that the wife signed the codicil, al-
though I do not think that this fact should be entirely overlooked.

In my view there is no doubt whatever that reading this will as a
whole, one is forced to the conclusion that it is an agreement for mutual
inheritance. Such an agreement is void under Greek law. In my
view, the application should be allowed and the order directing the
respondent to distribute the Sudan estate in accordance with the pro-
visions of the will should be set aside. An order should be substituted
directing the executor to distribute the Sudan estate as on an intestacy.

Flaxman J.; This is a question which has to be determined with
regard to the provisions of the Wills and Administration Ordinance,
1928, the relevant sections of which are, as to form, sections 5 and 6,
and as to substance. section 7. The question of form is not a matter
of dispute before us. It is conceded tbat the will conforms with the
requirements of Sudan law in that respect.

The dispute now arises out of the question of the disposition of
property made by the wiIl-a question which is one of substance and
not of form. The court is bound by the provisions of section 7 of the
above Ordinance, which relates to the validity and interpretation of
wills, and which is as follows:

"Subject to the provisions herein contained any question as
to the validity or effect of any proper interpretation and meaning
of any will shall be determined according to the testator's personal
law or any valid custom which may be shown to apply to the testator."                                                                                                          ,

Any question as to the interpretation of tbe provisions of tbis will
must therefore be determined by reference to the testator's personal
law, which is here the law of Greece.

From the point of substance, it is claimed by the applicant that
and as the will contains provision for mutual inheritance it is void in
Greek law, and that it will also, by reason of the provisions of s. 7
above and by interpretation in accordance with the testator's personal
law, be void in this country as to its contents and provisions.

It thus seems that the point with which this court is mainly con-
cerned is "does the will constitute an agreement for mutual inheritance?"

We have an opinion upon this point by Professor Balis, an ac-
knowledged authority, and one to whose opinion I, for one, feel
bound to attach the greatest respect. The learned professor to whom
the will was submitted, expresses a very definite opinion as to its con-
tents. He slates, inter alia:

"As regards the contents of the above will, these are also
totally (i.e., in all their provisions) void in Greek law, because
from the beginning to the end the document contains not merely
unilateral declarations of last will, but an agreement between hus-
band and wife to the effect that the one constitutes the other as
his heir, and further that only by common consent can they mod-

ify their will. There is no question in my mind that the contents
of this will constitute. what is know as an 'agreement of mutual
inheritance', which specifically and unequivocally is banned by
the provisions of the Byzantine-Roman la~ in force in Greece
and ad hoc between husband and wife. Here is what Law No.
S ... provides: 'If the husband enters into agreement with his
wife to inherit her upon her death, such agreement shall be null
and void .. .' Comment: 'Husband and wife may not agree to
inherit one another'."

It is objected, perhaps rightly so, that this court is in as good a
position as Professor Balis to judge upon the question of what does, or
does not, constitute an agreement; and I agree that it would be un-
wise blindly to follow his opinion. A careful examination of the terms
of the will should be made.

For my pert I have read, and reread, the document with a view
to ascertaining if it in fact contains an agreement or not, or if, although
joint in form, it .merely evidences an intention to make dispositions of
property without mutuality or intention of making a binding agree-
ment respecting the properties. It has been said that the absence of
any stated consideration goes to show that no agreement was made or
intended, and a suggestion is made that the clause relating to irrevoc-
ability should be excluded from this court's consideration because, in
any case, a will under Greek law is an essentially revocable act.

- To my mind the clause relating to irrevocability, far from being
one which should be excluded from our consideration, is one of great
importance where the question of the intention of the parties is con-
cerned. It is an index pointing most conclusively to their intention.
Even if it is redundant to any question of form, or is an unenforceable
provision, it still remains as a guide to what the parties intended to do.
They say in clear and unambiguous terms "We both agree never to re-
voke or alter this our last will and testament unless we both agree to
this effect." Why make this provision unless there was an in.tention by
the testators to create an agreement? It is the term of agreement
which binds together the mutual promises.

There was unfortunately no evidence before us or in the court
below as to how this will came to be made and signed, but an agree-
ment may be nonetheless an agreement although the consideration be
not clearly expressed .. Where, in a single document, A, subject to a
contingency, gives something to B, and B gives something to A, there

seems to be a strong presumption that one gift is in consideration of
the other.

I do not see any good reason to disagree with the learned profes-
sor's view that the will contains an agreement for mutual inheritance,
and one that, if not specifically made null and void under Greek law,
would be enforceable by one party against the other. I am not, except
as a matter for interest, much concerned with the reasons for the pro-
vision in Greek law, even tbough it may not accord with a principle of
law with which one is more familiar. It seems quite clear that such
an agreement is specifically banned, and would Dot be enforced in the
courts of Greece or any court bound to determine tbe matter under the
testator's personal law.

There is however a further question; an anxious one. Does it nec-
essarily follow because the will contains an unenforceable agreement
for mutual inheritance, that the wishes of the testators, as expressed in
the will, should be disregarded, and the deceased's property disposed
of as on intestacy? In other words, if the agreement is taken out of the
will, does it leave no disposition of property by the deceased?

It is with this point that I find considerable difficulty. It is sug-
gested, and it seems not improbable, that the deceased may have in-
tended to .bequeath his property, apart from a small bequest, to his
wife after his death; a wish which It may be desirable to consider
apart from any mutual agreement to dispose of property. If this is
the case, it seems necessary to consider if there are grounds for giving
effect to the deceased's wish, even although the will in substance con-
tains an unenforceable agreement. I assumed that the practice of the
English courts in interpreting a will as nearly as possible in accordance
with the wish of a testator is also the practice of the courts adminis-
tering the law of Greece.

As a first requisite it is necessary to be quite satisfied that the de-
ceased intended, quite apart from any mutual agreement relating to
his wife's property, to leave the bulk of his property to his wife. Is
there evidence of such an intention? I do not find it in the will, nor is
there any other evidence to that effect. The will seems clearly to evi-
dence an agreement to make a mutual disposition of property, and I
do not consider that any other intention can ~ be inferred from it.
In the absence of proved intention, I see no remedy for the respondent
in this direction and as the will, although valid in form in this country,
is null and void in substance under Greek law, and as this court is

bound where questions of the validity and interpretation of wills are
concerned to follow a testator's personal Jaw, I feel bound, though with
some reluctance, to state my opinion that this appeal must succeed.

Evans R.G.L.: J have the misfortune in this case to differ from
the learned Chief Justice and the other learned judge.

The facts are sufficiently stated in their judgements and the reasons

        which have led me to my finding are stated below.                     

There is now no question as to the validity of the will in form,
and the only question is whether or not the will is invalid in substance.
There is nothing repugnant to the testator's personal law in the actual
testamentary dispo~ition of his estate, but it is contended on behalf
of the appellant that the will constitutes an agreement for mutual
inheritance between the testator and his wife, Dina, and as such is
invalid in Greek Jaw. Let me say at once that I accept fully the
opinion of the learned and distinguished Greek jurist, Professor Balis.
as to the law which should be applied, but it is not on any point of
law that I find myself compelled to differ from the judgement of the
majority of this court.

In my view this appeal succeeds or fails on the correct answer
to the following question:

Is the document of January 17, ]919, executed by the testa-
tor and by Dina K. Voulgaris in fact a formal agreement between
the parties for mutual inheritance or not?

In my view it is not. What is the evidence in support of the con-
tention that it is such an agreement? I think the test to be applied
is this: what were the surrounding circumstances, and in particular
the intention of the parties when the document was executed? Un-
fortunately direct evidence on this point is not available, and in these
circumstances the court can look only to the document itself.

As I understand the applicant's case it is submitted:
(a) that the bequests are mutual;

(b) that the will contains a mutual agreement not to alter or
revoke the same;

(c) that the codicil to the will is signed by born parties.

As to (c) the learned Chief Justice himself does not attach
great weight to this, but feels it should not be overlooked; taking

the view of the matter 1 do, I think it is irrelevant. As to (b) I
believe this to be no more than a true expression of the wishes and
intentions of the parties at the time. They no doubt thought, in
ignorance of the law governing the matter, they had irrevocably
bound themselves not to alter or remake the will, but the clause is
in Greek as in English law, if the document is truly a testamentary •..
disposition, of no effect. Both parties were in fact fully at liberty
at any time to make fresh wills involving a different disposition of
their property, provided of course that such disposition did not
conflict with their personal law, that is to say, making provision for
any "necessary" heirs. I would here remark although it is not
strictly relevant to the point at issue, that even if the document were
construed as an agreement for mutual inheritance, the clause as to
the irrevocability would similarly be of no effect, for admittedly in
Greek law such an agreement would be entirely null and void from
its very nature, and the parties would likewise be equally free at
any time to make fresh dispositions of their property, again subject
to proper provision being made for any "necessary" heirs.

It may be said that in taking this view of the matter I am
begging the question, but I do not think so. I have clearly in my
mind the whole time this: what was the real intention of the parties?

As to (a), which is without doubt the most difficult part of
the case, that the dispositions are in fact cross-gifts is beyond question,
but in my view this does not necessarily conclude the matter. First
it should be noted for what it is worth that the testator did not make
an absolute disposition of the whole of his estate to his wife-there
is the bequest to his niece, the present appellant. I conceive that it
is possible that a joint will might be made between husband and wife,
involving mutual dispositions of their property which, adopting the
interpretation as to mutual inheritance that the appellant seeks to
establish in this case, would be upheld by this court. That is to
say, if the cross-gifts as between husband and wife were of that part
of their respective estates which they would be bound to leave to
each in accordance with their personal law, i.e., a moiety as "neces-
sary" heirs. ' Supposing the dispositions were of a little more than
this? Would this render the will nu'l and void? Does any question
of degree enter into a consideration of the matter? I express no
opinion on this point, but if it were so, it seems to me it would be a
difficult matter to decide where to draw the line, on one side cf
which the will would be a valid testamentary disposition and on

the other invalid, as constituting an agreement for mutual inheritance.
But I do not found my judgement on this.

What were the true circumstances under which this will came
to be executed? 1 believe them to be these: the desire of a childless
couple to make as full provision for each other as possible after the
testator had made what he considered suitable provision for his
only other near next of kin, his niece, the present appellant. What
more natural! The learned Professor Balis in his opinion says that
"agreements for mutual inheritance are considered void and unethical
in Greek law as being contrary to good morals (contra bonos mores),
because the law requires that the last will, (i.e., the post mortem
disposition of property) must emanate from entirely free and un-
restrained intention and must not be the product of a conventional
bond." I accept this fully, but in my view there can be no doubt
whatsoever that the testator's disposition of his property was such
an expression of unrestrained intention at that time. I would add
with great respect that the learned Professor's expression of opinion
that "In the present case it is not at all certain indeed whether the
fact that the will of Constantine Voulgaris remained unchanged for
SO many years is due to his unchanged desire and volition or to the
restraint of the marital agreement" can only be regarded as in the
nature of special pleading. I do not believe that this document was
a formal agreement between the parties whereby the one left his
property (subject of course to the bequest to the appellant) in con-
sideration of the other leaving her property to him. I do not think
any such consideration entered into the minds of the parties. I
believe they were simply and solely making the most natural dis-
position of their property in their particular circumstances as could
possibly be conceived. And -I do not think it right to draw any
presumption of mutual inheritance merely because the will has been
made in joint form. This court must be abundantly satisfied beyond
all reasonable doubt that the document in question is such an agree-
ment for mutual inheritance, and in considering this the court should,
in my view on the question of validity, and if the intention is clear.
construe the will favourably rather than the reverse.

For the sake of completeness I would add that the oprruon of
the other learned Greek jurist, Professor Seferiadis, which was put
before the court in this case, does not afford much assistance on
this point, but this at least can be said, that there is nothing in it
which conflicts with the view I have taken. I would add that it is