The reserved portion : an assessment of its impact on testamentary freedom and the testator’s right to distribute his estate : a comparative analysis

Abstract

The notarial report will provide an overview of the legal concept of the reserved portion and its impact on testamentary freedom and the testator's right to distribute his estate. Such overview will focus on the historical and legal context of this legal concept and its development over time, including its application under Maltese Law and other jurisdictions. Based on the research collected and the various debates and controversies surrounding this topic, the author will make a critical analysis on the testamentary freedom and the potential conflicts between the testator's wishes and the legal requirements of the reserved portion. In addition to this, the author will also make an analysis on the impact of this concept when it comes to the distribution of the estate. The comparative analysis on this subject will include an examination and interpretation of what is provided under the Maltese Law and other selected jurisdictions which are Italy, France and the United Kingdom. This exercise will help the author to provide an analysis on the strengths and weaknesses of this legal concept, and by virtue of this analysis, suggestions will be provided. The research will also evaluate the effectiveness and fairness of the reserved portion in achieving its purpose, such as protecting the interests of certain family members mentioned by law and ensuring a just distribution of the estate. It will also explore alternative approaches that may better balance the competing interests of testamentary freedom and family protection and will delve into some of the key criticisms of the reserved portion, including arguments that it restricts testamentary freedom and is no longer fit for purpose in modern society. The final section of the dissertation will allow the writer to mention the main findings and conclusions of the research. The author in this section, will provide opinions on whether the reserved portion is still relevant and important in today’s society and time. Based on the evidence presented in the other parts of the dissertation, this section will offer some policy recommendations for reforming the reserved portion or introducing alternative mechanisms to better protect the interests of testators and their heirs under Maltese Law.