Wills and Inheritance
An individual has the right to dispose of his property by Will for a time when one shall have ceased to live. This right is founded on the right to ownership itself; it is the last and therefore the most precious assertion of the right to ownership. We offer specialised advice on fiscal implications and we explain the legal procedure which will follow after your demise. This will ensure that you factor in your specific requirements when drawing up your will in the presence of the Notary and Witnesses.
THE LAW OF SUCCESSION
The Law of Succession is a highly regulated area of our law. It embodies a substantial portion of our Civil Code. Article 588 of the Civil Code states that a will is an instrument, revocable by nature, by which a person, according to the rules laid down by law, disposes for the time when he shall have ceased to live, of the whole or part of his property”. A will only has effect upon the death of the testator and may therefore be revoked at will before his demise. The dispositions of a man are contained in a will and in the absence of such Will, inheritance devolves by operation of the law.
Testate Succession – By Disposition of Man
Testate succession is dealt with in our law under sub-title 1, of Title III of Part II of the Civil Code. The right of the heir or legatee towards the estate of the deceased will be subject to the validity or otherwise of the testamentary disposition, the capacity of the testator to dispose by means of a will as well as the capacity of the heir or legatee to receive under a will.
A legatee is a successor by a singular or particular title – a successor by virtue of a disposition in a will done by the testator with which individual or particular assets shall be owned by specified persons after his demise. Therefore the conditions proper to a legacy refer to the person on whom it is imposed and the thing forming its subject. A bequest made by singular title may either be a simple legacy or a pre-legacy. A pre-legacy is that which is imposed on inheritance and all the co-heirs, including the legatees and the thing bequeathed is delivered or paid to the legatee before the division of the inheritance.
An heir is one which receives in his favour by virtue of a disposition by universal title.
Types of wills
Secret wills are quite archaic. They involve absolute secrecy and only the testator should know its contents. The testator writes out his own will and seals it himself. He may then either deliver such will to a notary or go directly to a Court of Voluntary Jurisdiction and deposits the envelope there. When Notaries carry out the “act of delivery” they deposit it in the Registry of the Court of Volontary Jurisdiction. There must be two witnesses to the act of delivery and the Notary must deposit the will within four working days. No one would know about the will or its contents.
Public Wills, on the other hand, the Notary is aware of the contents of the Public Will and everyone interested knows that there is a will since it is registered by the Notary. Even in this case the law requires 2 witnesses who know the contents of the will. The Notary cannot divulge the contents of the will and makes a note of enrolment informing the Director of Public Registry that a will has been published.
Will by husband and wife in one and the same instrument – It is possible for a husband an d wife to enter into a will in one and the same instrument. This is called a Unica Charta Will.
Privileged Wills – Privileged wills are those which are done in exceptional situations and therefore require less stringent formalities than all the other wills mentioned above.
Intestate Succession – By Operation of the Law
Inheritance is the estate of the person deceased, and it devolves either by disposition of man or in absence of any disposition, by operation of the law. In the absence of such disposition, inheritance devolves according to intestate succession. Your nearest relatives with inherit in the absence of a disposition in a will to the contrary. The law calls to the succession of a person descendants or children if the deceased has left descendants, but no spouse or 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. If children and a spouse survived the deceased then half of the succession will devolve on the children, or their descendants, and the other half will devolve on the spouse. If the deceased has not left any children or descendants or a spouse then succession will devolve upon the nearest relatives according to law and in the absence of such relatives
If the deceased is not survived by any of the aforementioned persons the inheritance will devolve upon the Government of Malta.
Reserved Portion and the Family’s right of Succession
As a rule, the right to dispose by will has no restrictions since it is an element of the right of ownership itself. Therefore, any person may dispose by will or donation of the whole of his estate in favour of any person capable of receiving under a will or by donation. The reserved portion is the exception to this – it is a fixed part of the estate granted to the surviving spouse and children or descendants and and which therefore cannot be freely disposed of by the testator. The law allocates to children or descendants one third of the value of the estate where there are not more than four and one half of the value if there are more than five, whilst the spouse shall be entitled to one-fourth of the value of the estate in full ownership and where there are no children, to one third.