Authors: Gianluca Falzon & Nina Fauser
Under Maltese law, wills are mainly regulated by the Civil Code, Chapter 16 of the Laws of Malta (the “Code”), which inter alia defines a will as an instrument by which a person disposes of his/her property for the time when he/she shall have ceased to live, and establishes that wills can always be revoked by the person making such will, who is referred to as a ‘testator’.
In terms of the Code, wills can be either public or secret wills. Public wills are drawn up in front of a notary and two witnesses and are registered in the Public Registry, and record of such a will is held there and in the appointed notary’s records.
By contrast, secret wills are drawn up with the sole purpose of the public not knowing whether a testator would have executed his/her will or otherwise. In this regard, such a will is drawn up by the testator himself and handed to a notary, who shall deposit the will in the Registry of the Court of Voluntary Jurisdiction and the notary himself shall not be entitled to keep a record thereof. Accordingly, following the testator’s death and upon presentation of the deceased person’s death certificate, persons can perform searches in the Court of Voluntary Jurisdiction to see whether such deceased person had made a secret will. During one’s lifetime, third parties have no means of knowing that a secret will has been made.
On the other hand, a will made by two spouses in the same instrument is referred to as an ‘unica charta’ will, in virtue of which, spouses will generally give the surviving spouse sole power over the disposal of any assets pertaining to a pre-deceased spouse. In the case of children, such children may demand the reserved portion which is due to them by law (i.e. one-third of all the deceased’s estate if the children are not more than four in number, or one-half of the deceased’s estate if the children are five or more in number), after the death of the first parent.
What is required for a will to be valid?
As a primary consideration, in order for a will to be valid, the testator must not be under any form of legal incapacity, as established in Article 596(1) of the Code. This means that in order for a will to be valid under Maltese law, the testator:
- Must have attained 16 years of age (yet, persons aged between 16-18 years can only make remuneratory dispositions);
- Must be capable of understanding and volition, and must be capable of expressing his/her will;
- Must be deemed capable of managing his/her own affairs at the time of the will;
- Must not be interdicted on the ground of insanity or mental disorder; and
- Must not be interdicted on the ground of prodigality, unless he/she has been authorized to dispose of his/her property by the Court which ordered his/her interdiction.
Furthermore, it is pertinent to note that as per Article 599 of the Code, any will which is made by a person subject to incapacity is deemed to be null, even though the incapacity of the testator may have ceased before his/her death. In a recent case decided on the 23rd of November 2020, that of Galea vs. Casingena, the Court of Appeal noted that the testator was incapable of managing her own affairs due to a mental disorder and therefore, the Court deemed the will to be invalid. In another case decided on the same day, that of Scicluna vs. Dalli, the Court of Appeal noted that the testator need not have any specific level of knowledge to be able to enter into a valid will, yet it shall be sufficient for the testator to have a limited use of reason and to know what he/she wants to do with his/her property. In its judgement, the Court went a step further and noted that this ability of understanding and volition of the testator can be best determined by the Notary who would have assisted the person in drawing up the will.
This reasoning was also adopted locally by the Courts in the case of Galea vs. Camilleri decided on the 1st of July 2005, where the Court of Appeal laid down the following 4 principles:
- The capacity to make a will is presumed, and incapacity is the exception;
- In order to dispose by will, a person need not be perfectly sane, but it is sufficient for such person to have a limited use of reason, sufficient perception, awareness and memory;
- He who alleges insanity, must prove it; and
- A determining factor of establishing one’s mental sanity is the reasonableness of the testamentary dispositions.
Additionally, in the case of Xuereb vs. Refalo decided on the 2nd of March 2010, it was established that the lack of a medical certificate accompanying the will does not automatically render the will as null and void.
Who can act as a witness to a will?
Article 655 of the Code establishes that in terms of public wills, in order for such a will to be valid, it must be received and published by a notary in the presence of two witnesses, and must always be signed by the testator and both witnesses, in the same manner as any notarial instrument, and this, in accordance with the provisions of the Notarial Profession and Notarial Archives Act, Chapter 55 of the Laws of Malta (the “Act”).
Article 27 of the Act establishes the following three basic requisites which must be satisfied in order for a person to be eligible to act as a witness to a will:
- The person shall have attained the age of 18 years;
- The person must have been born in Malta, or resides in Malta; and
- The person shall have no interest in the will.
Under our law, whilst a beneficiary of a will may not act as a witness to such will, there is nothing prohibiting such person from being present when a will is being made. Article 670 of the Civil Code establishes that in public wills, the following persons shall not be competent to act as witnesses:
- Legatees; and
- Relations of heirs or legatees by consanguinity or affinity within the degree of uncle or nephew, inclusively.
However, when it comes to privileged wills, namely wills which are made in places where communications are interrupted (such as wills made at sea), Article 673(4) provides an exception to the above and establishes that in terms of such wills, any person above the age of 18 years may act as a witness.
In the case of Abela vs. Sinagra decided on the 8th of April 2013, the First Hall Civil Court noted that the rationale behind the requirement of having two witnesses present when a will is being made, is to ensure that the testator is not unduly influenced by a person who may be exerting pressure on the testator, and therefore, to ensure that the will reflects the testator’s true intentions. The Court also noted that although the presence of two witnesses is an essential formality, in cases of doubt as to whether certain formalities were followed in this regard, there shall be a presumption that the formalities were followed and therefore, the onus shall fall on the plaintiff to prove otherwise.
In cases where there is no valid will, or where a will has not been drawn up, intestate succession shall take place, wholly or in part, by operation of the law, as per Article 788 of the Code.