An Overview of the Law of Succession in Malta

Dr. Priscilla Mifsud Parker | 15 Dec 2016

Ccmalta Default

Introduction

In Malta the estate of a deceased individual (hereinafter referred to as the ‘testator’) is transferred by inheritance either through the express disposition of the individual in the form of a will, or through pre-determined modes of disposition by operation of the law in the case of the absence of a will.[1] This article shall not deal with the ‘trust’ concept which itself is yet another method through which the assets of a deceased person may be transmitted to the beneficiaries.

Generic Features of Wills

The will, which comes into effect on the death of the testator, may contain:

  • Dispositions by universal title by virtue of which the testator bequeaths the whole of his property, or a portion of his property, in favour of ‘heirs’; and
  • Dispositions by singular title by virtue of which the testator bequeaths individual assets in favour of specified persons referred to as ‘legatees’.[2]
  • Dispositions through which the testator substitutes another person for the heir-institute or the legatee if the original heir or legatee is not able, or is not willing, to accept the inheritance or legacy.[3]

Forms of Wills

Ordinary Wills

Ordinary wills may be:

  • A public will; received and published by a notary in the presence of two witnesses – the public will is subject to the usual formalities applicable to a valid public deed; [4] A will is ‘public’ only insofar as the existence of the will is rendered public through registration in the Public Registry – the contents of the will remain secret in any case.
  • A secret will; which may be written by the testator himself or by a third party which is subsequently sealed and delivered to a notary who draws up an act of delivery on the will itself or its envelope. The will is then delivered to the court of voluntary jurisdiction by the notary.[5]

Will unica charta

A husband and wife may draft a will in one and the same instrument which is commonly known as a will unica charta. Saving this exception it is not possible for two or more persons to draft a will in the same instrument, whether for the benefit of a third party or for mutual benefit.[6]

Privileged Wills

The law also provides for exceptional situations where specific wills are allowed with less stringent formalities than those of ordinary wills in Malta.

Where communications have been interrupted

The first case where such a will is accepted is in the case of a will where communications have been interrupted by order of the public authority. In this case a will may be received in writing by a judge, magistrate, a notary, or a parish priest or other ecclesiastic in holy orders, in the presence of two witnesses. This will is subsequently filed within the court of voluntary jurisdiction and it is valid for up to two months from when communication is re-established with the testator.[7]

Wills made at sea

Another scenario envisaged by the law is in the case of wills made at sea, which may be received in writing by the master of any ship registered in Malta, or the person acting in his stead. The will must be received in duplicate in the presence of two witnesses. This will has to be signed by the testator, the person receiving it as well as the witnesses. It will only come into force if the testator dies at sea or in the case where two months have not lapsed since the landing of the ship in a place where he could have made a will in the ordinary form.[8]

Wills made outside Malta

A will made outside Malta is valid in Malta provided that it is made in the form prescribed by the law where the will is made.[9]

Capacity

Who may make a valid will?  There are specific instances in the law where particular persons are not allowed to make a valid will:

  1. persons under the age of seventeen (provided that persons who have not yet reached the age of eighteen can only make remuneratory dispositions);
  2. persons who are interdicted on the ground of insanity;
  3. persons who are not capable of understanding, unless assisted by an interpreter;
  4. persons who are of unsound mind at the time of the drafting of the will;
  5. persons who are interdicted on the ground of prodigality, unless they have been duly authorized to dispose of their property by the court that originally ordered their interdiction.[10]

Who is capable of receiving by will?  On the other hand, all children that are at least conceived at the time of the drafting of the will are capable of receiving by will provided that they are born viable.[11]

The only persons that are incapable of receiving by will are the principal actors or accomplices in any of the following scenarios:

  1. the wilful homicide or attempted wilful homicide the testator or his/her spouse;
  2. charging the testator, or his/her spouse, with a crime before a competent court knowing that he/she was innocent;
  3. where the testator has been compelled or fraudulently induced to draft the will or to change any dispositions thereof;
  4. where the testator has been prevented from making a new will or revoking the will already made, or if the actor or his accomplice suppressed, falsified or fraudulently concealed the will.[12]

Exceptions

Tutors and curators of a testator who is under their charge cannot receive by that will unless they are closely related to the testator or married to him/her. Moreover a notary who has received a public will and any person who has drafted a secret will for the testator cannot benefit out of the said will.[13] Any disposition in favour of any parents, descendants or spouses (called ‘intermediaries in terms of the law) of these persons will also be void.[14]

Disposable Property

If the testator does not have a spouse or any descendants he may dispose by universal or singular title to any person capable of receiving under a will

However if the testator does have a spouse or any descendants then the disposable portion of his estate is that which remains after deducting the share due to the descendants or surviving spouse by virtue of the law.[15]

Reserved Portion due to Children

The reserved portion is a right on a portion of the estate of the deceased that may not be disposed of by universal or singular title to any person,since it is reserved by the law in favour of the descendants and the surviving spouse of the deceased. This right is a right of credit (payable in cash) of the value of the reserved portion against the estate of the deceased.[16]

The testator may not encumber the reserved portion with any burden or condition. The reserved portion is calculated on the whole estate after deducting the debts due by the estate and the funeral expenses. Moreover all the property disposed of by the testator during his lifetime under a gratuitous title in favour of any person whomsoever, is included in the calculation of the value of the estate, with the exception of expenses incurred for the education of any of the children or other descendants.[17]

All children, whether conceived or born in or out of wedlock, are entitled to one of the following reserved portions:

  • One-third of the value of the estate for up to four children;
  • One-half of the value of the estate for five or more children.

The reserved portion is divided in equal shares amongst the children accordingly.[18]

Descendants may only be disinherited on the following grounds:

  1. if the descendant unreasonably refused maintenance to the testator;
  2. if the descendant has abandoned the testator without in any manner providing for his care is he has become insane;
  3. if the descendant failed to release the testator from prison without any reasonable grounds if the testator could be released;
  4. if the descendant has struck the testator or was guilty of being cruel towards him in some way;
  5. if the descendant has been guilty of grievous injury against the testator;
  6. if the descendant is a prostitute without the consent of the testator;
  7. if the testator had been previously freed of his obligation of paying maintenance to the descendant owing to the fact that he contracted marriage notwithstanding the opposition of the testator on good grounds;[19]
  8. if the descendant is disinherited on the grounds of prodigality, or if he is burdened with so much debts that the reserved portion, or the greater part of it, would be absorbed by these debts.[20]

The grounds of disherison must be proved by the testator or his heirs. However notwithstanding the disinheritance of the said descendant, if he has children of his own, the reserved portion of which he has been deprived will be due to his children. The right of these children cannot not be prejudiced even if their disinherited ascendant predeceases the testator.[21]

Rights of the Surviving Spouse

If the deceased has any children or other descendants at the time of death then the surviving spouse is entitled to one-fourth of the value of the estate in full ownership. On the other hand if there are no children or descendants of the deceased the surviving spouse is entitled to one-third of the value of the estate in full ownership.[22]

The surviving spouse also has a right of habitation over the property he occupied as his principal residence at the time of the death of the deceased spouse if it was held by the deceased spouse in full ownership or emphyteusis, either alone or jointly with the surviving spouse. This right will cease upon the remarriage of the surviving spouse. Moreover the right of habitation may be excluded or reduced by means of a pre-nuptial or post-nuptial agreement.[23]

The rights of the surviving spouse are totally excluded if:

  • the spouses were separated by a judgement of the competent civil court at the time of the death of one of the spouses (with the exception of the case where the spouse is entitled to reside in the matrimonial home following the separation);
  • if the testator, in his will, has expressly deprived the surviving spouse of these rights on the ground of adultery or on any ground upon which a descendant may have been disinherited (refer to section 5.1 above);
  • if there exists any ground by virtue of which surviving spouse would have been deemed to be unworthy of receiving by will in terms of the law (refer to section 4.2 above).[24]

Pure, Conditional and Limited Dispositions

Pure dispositions are those that come into effect without any stipulated condition or limitation on the heir receiving by universal title or the legatee receiving by singular title.

The testator may insert dispositions containing the fulfillment of a specific condition for the particular heir or legatee to receive by universal or singular title respectively; provided that if the condition stipulated is impossible or contrary to the law or morals, it will vitiate the disposition to which it is attached,

On the other hand, a condition that is unintelligible, or a condition that prohibits a first or subsequent marriage, will be ignored as though it was not included in the disposition. In this case, the disposition is not annulled as a result of the exclusion of the condition. The condition is also ignored if it restrains the heir from availing himself of the benefit of inventory.[25]

The Right of Accretion

The share of an heir or a legatee will accrue to that of the other co-heirs or co-legatees, together with the obligations and burdens attaching to it, where the following conditions are satisfied:

  • Where there are two or more heirs, or persons named as legatees, together in a will; and
  • one of these persons either:
    • predeceases the testator;
    • is incapable of receiving;
    • refuses the inheritance or the legacy; or
    • has no right thereto due to the non-fulfilment of a condition under which the particular person was instituted or named, [26]

Where accretion takes place the co-heir or co-legatee may not refuse the accrued share unless he renounces to his own original share.[27]

The only exceptions to this rule are:

  • When the person in whose favour the testamentary disposition is made predeceases the testator, the descendants of that heir or legatee may succeed in his place to the inheritance or legacy,[28] unless the testator has indicated otherwise or unless the subject of a legacy is a right of usufruct, use, habitation, or any other personal right;[29]
  • In the case of creditors of a person who renounces to his inheritance to the prejudice of their rights – these individuals may apply to the Court to accept the inheritance in the place of their debtor. In such case, the declaration of renunciation is annulled only to the extent of the creditors’ interests. This action may be revoked by the other co-heirs through the payment of the debt, being subrogated to the rights of the creditors whose rights have been satisfied.[30]

Intestate Succession

Intestate succession is a pre-determined mode of succession contemplated by the law which is based on the presumed proximity of the relationship between the deceased and his relatives. Accordingly, the estate of the deceased will devolve through the operation of the law in favour of the descendants, the spouse of the deceased, the ascendants, the collateral relatives, and, in the absence of these persons, the Government of Malta, in the case where:

  1. there is no valid will; or
  2. where the testator has not disposed of the whole of his estate; or
  3. where the heirs are unwilling or unable to accept the inheritance; or
  4. where the right of accretion among the co-heirs does not arise.[31]

In this regard any persons who are incapable or unworthy of receiving under a will (refer to section 4.2 above), or persons who have prevented the deceased from making a will by fraud or violence, will be incapable of succeeding the deceased by operation of the law through intestate succession.[32]

Despite this exception, the children or the descendants of a person who is excluded as unworthy will not be excluded on account of the conduct of their parent or ascendant.[33]

Descendants

If the deceased has left children or their descendants, but no spouse, the entire succession will devolve upon the children and other descendants, without any difference in treatment afforded due to a distinction of sex, whether they are born or conceived in marriage or otherwise, or whether they were born out of the same marriage or different marriages.[34]

Spouse

If the deceased is survived by a spouse, but has left no children or other descendants, the entire succession will devolve upon the surviving spouse.[35]

Descendants and Spouse succeeding together

If the deceased has left children, or their descendants, and is also survived by a spouse, then half of the succession will devolve on the children, or their descendants, and the other half will devolve on the spouse. With regards to the half of the succession to be devolved upon the children, or their descendants, there will be no difference in treatment as elaborated upon in section 8.1 above.[36]

Ascendants and Collaterals

The difference between ascendants and collaterals is that ascendants are persons related to the deceased in the direct line, and collaterals are persons that are related to the deceased by virtue of a common ancestor: for example, a brother would be related to the deceased through his father; and an uncle would be related to the deceased through his grandfather: in these scenarios the father and the grandfather would be the common ancestors respectively.[37]

The succession will devolve on the ascendants and collaterals only if the deceased has not left any children, or other descendants, and if he was not survived by a spouse.[38] In such a case the succession would devolve as follows:

  1. to the nearest ascendant or ascendants if there are no brothers and sisters of the deceased;
  2. if there are ascendants and brothers and sisters of the deceased, half of the succession will devolve upon the ascendants and the other half will devolve on the brothers and sisters of the deceased;
  3. if there are no ascendants and only brothers and sisters of the deceased, the entire succession will devolve upon the brothers and sisters of the deceased;
  4. if there are no ascendants and no brothers and sisters of the deceased, the succession will devolve upon the nearest collateral in whatever line he may be so long as it does not extend beyond the twelfth degree.[39]

The Government of Malta

If the deceased is not survived by any of the aforementioned persons the inheritance will devolve upon the Government of Malta.

Collation

In relation to both testate and intestate succession, collation only applies to children and descendants on succeeding the inheritance of an ascendant, being due by a descendant being a co-heir to another co-heir. In collation the children would impute the value of anything they may have received from the deceased by donation, either directly or indirectly. This ensures that the entire estate of the deceased devolves on the descendants equally. The value taken into consideration is the value of the thing at the time of the opening of the succession. If the thing has been alienated since the donation, the value to be collated will be the consideration received by the done or the value of the thing at the time of the alienation, whichever is higher.[40]

If the thing donated is an immovable the donee is allowed the expenses with which he has improved the immovable to the extent of increase in value produced. On the other hand the donee would also have to account for any deterioration caused through his fault which may have diminished the value of the property.[41]

Despite this default application of the law, exemption from collation may nonetheless be granted either by the same deed containing the donation or by a subsequent deed having the formalities necessary for the validity of donations or wills. Notwithstanding this exemption, however, if the donation exceeds the disposable portion, the excess will be subject to collation.[42]

Exceptions

The following donations are deemed to be made without obligation of collation:

  1. donations made to descendants of a person entitled to succeed the deceased;
  2. donations made to ascendants;
  3. donations made to the spouse of a person entitled to succeed;

Moreover expenses of maintenance, education, and instruction, ordinary expenses for weddings, and customary presents, are not subject to collation. Profits which may be derived from agreements entered into with the deceased will also not be subject to collation, provided that no indirect advantage was conferred.[43]

Everything that is left by a will is not subject to collation in the absence of an express disposition to the contrary.[44]

No collation is due in the case of:

  1. donations of movables that are consumable by use, articles of clothing or articles intended for domestic use;
  2. where the thing has perished due to a fortuitous event without any fault of the done and without any compensation having been obtained for the loss of the thing.[45]

The Current Position in Malta

In matters of private international law, wherever there is a lacuna in Maltese law, English Common Law will apply in Malta – this extends to matters of both testate and intestate succession.

The general rule in the case of testamentary succession to immovables is that the law of the place where the immovables are situated (lex situs) will regulate the succession of that particular immovable.[46] In this respect Maltese law will regulate the devolution of the property through intestate succession where no will is provided for by the owner of that particular estate upon his death. To avoid this situation, a Maltese will must be drawn up to regulate the devolution of immovable property situated in Malta.   

In the case of movables, however, the general rule is that the testamentary succession of movables is governed exclusively by the law of the domicile (lex domicilii) of the deceased at the time of his death.[47]

Notwithstanding the above, Maltese law provides that “a will made outside Malta, shall have effect in Malta, provided it is made in the form prescribed by the law of the place in which the will is made.”[48]

The Proposal for the EU Regulation in matters of Succession[49]

Following in the footsteps of the Brussels I[50] and the Rome I[51] and Rome II[52] Regulations in the ambit of civil and commercial matters, the Commission has attempted to extend the EU regulation of private international law to cross-border successions, an area that had always been omitted from the scope of previous regulations. The primary objective behind the Proposal for the Regulation[53] is entirely linked to the progressive establishment of an area of freedom, security and justice within the EU, promoting the free movement of persons who currently face difficulties in asserting their rights in the context of an international succession.[54] It attempts to accomplish this objective by catering for all of the following elements in one instrument:

  1. rules determining which particular courts have legal jurisdiction to hear cases involving cross-border successions within the EU, from the Member States subject to the Regulation;
  2. rules determining what the applicable law to a particular case is;
  3. rules regulating the mutual recognition and enforcement of the decisions and legal transactions coming from other Member States in order to substantiate the principle of mutual trust between Member States in succession matters.[55]
    • Some provisions also address the recognition of “authentic instruments formally drawn up or registered in a Member State”, such as a public will published by a notary in Malta, which will be automatically recognised in other Member States.[56]

The Regulation also introduces a European Certificate of Succession - an instrument which constitutes proof of:

  1. the capacity of heirs or legatees; and
  2. the powers of the executors of wills or third-party administrators.[57]

Though the application for a European Certificate of Succession is provided in Annex I to the Regulation, this is not an obligatory instrument and it will not substitute internal procedures.

Conclusion

Iit is advisable for any person owning any  property in Malta to regulate his estate by creating a Maltese will before a local notary. This is the best safeguard available in order to ensure an appropriate peace of mind when it comes to the accurate devolution of a person’s estate in accordance with his precise demands.


[1] Article 585 of the Civil Code (Chapter 16 of the Laws of Malta).

[2] Id. at Articles 588 – 591.

[3] Id. at Article 751.

[4] In terms of the Notarial Profession and Notarial Archives Act (Chapter 55 of the Laws of Malta).

[5] Articles 654-660 of the Civil Code (Chapter 16 of the Laws of Malta).

[6] Id. at Articles 593 and 595.

[7] Id. at Articles 673-675.

[8] Id. at Articles 676 and 680.

[9] Id. at Article 682.

[10] Id. at Article 597.

[11] Id. at Articles 600 and 601.

[12] Id. at Article 605.

[13] Id. at Articles 609 and 610.

[14] Id. at Articles 612 and 613.

[15] Id. at Article 614.

[16] Id. at Article 615.

[17] Id. at Article 620.

[18] Id. at Article 616.

[19] Id. at Article 623.

[20] Id. at Article 630.

[21] Id. at Articles 625-627.

[22] Id. at Articles 631 and 632.

[23] Id. at Article 633.

[24] Id. at Articles 638 and 639.

[25] Id. at Articles 710-713 and 715.

[26] Id. at Article 737.

[27] Id. at Article 740.

[28] This occurs in the case of persons that would have benefited through the rule of representation provided for in the provisions regarding intestate succession.

[29] Article 745 of the Civil Code (Chapter 16 of the Laws of Malta).

[30] Id. at Article 866.

[31] Id. at Articles 788-790.

[32] Id. at Articles 796 and 797.

[33] Id. at Article 799.

[34] Id. at Articles 809 and 811.

[35] Id. at Article 810.

[36] Id. at Article 808.

[37] Id. at Article 795.

[38] Id. at Article 812.

[39] Id. at Articles 812-814.

[40] Id. at Articles 913, 930 and 931.

[41] Id. at Article 923.

[42] Id. at Articles 914 and 915.

[43] Id. at Articles 924 and 925.

[44] Id. at Article 923.

[45] Id. at Article 931.

[46] J J Fawcett & J M Carruthers, Cheshire, North & Fawcett: Private International Law (Oxford University Press, 2008) p. 1279.

[47] Id. at p. 1264.

[48] Article 682 of the Civil Code (Chapter 16 of the Laws of Malta).

[49] Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession.

[50] Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

[51] Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

[52] Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II).

[53] Hereinafter referred to as ‘the Regulation’.

[54] Recital (6), Preamble to the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession.

[55] Id. at Recital (5).

[56] Article 34 of the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession.

[57] Id. at Article 36.

 


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