Defrauding the creditors under the law of succession : how easy is it?

Abstract

It is frequent in common parlance to refer to ‘fraud’ without appreciating its legal implications. Under Maltese Civil law ‘fraud’ assumes a multifaceted nature, a characteristic owing much to the fragmented concept it held under Roman law. Different forms of ‘fraud’ are envisaged and different actions are available. Under Maltese Civil law, the term ‘creditor’ refers to any person having an exercisable action to claim the performance of a civil obligation due to him. This term appears on a number of occasions under the Law of Succession. However, by virtue of the legal definition under Maltese Civil law, creditors are not limited to those expressly prescribed by law. This leads us to the central question of the thesis, that is, whether the creditors under the Law of Succession may be easily defrauded. In this respect, the Maltese Civil Code provides a number of special actions against ‘fraud’ but which find little application for creditors since they do not sustain any direct prejudice. On the other hand, a higher level of protection is afforded to particular creditors under the Law of Succession by remedies and mechanisms which address ‘fraud’ without the need to prove ‘fraud’. In this sense, it appears to be more difficult to defraud certain creditors than others. However, the creditors under the Law of Succession have to endure, albeit in different degrees, the reality of having to abide by the strict requisites of the different actions competent to them against ‘fraud’, both in respect of the material and the intentional element. Therefore, although the legislator has in a number of instances improved the protection for certain creditors against ‘fraud’, with the introduction of certain institutes and the development of others in the Maltese legal order, it became easier for creditors under the Law of Succession to be defrauded.