The reserved portion : an unjustified restriction?

Abstract

Property rights and testamentary freedom have always been at odds with the need to protect the family once the testatrix passes away. These two institutes are in fact tightly embedded in every law of succession, regardless of jurisdiction. Many European jurisdictions, including that of Malta, enforce some kind of limitation on testators. This is normally done to ensure that no close family member or spouse is capriciously excluded from the will of the decuius. Recently however, many have been questioning the justification of these limitations by arguing that each and every person should be free to dispose causa mortis as one is free to dispose inter vivos. Others have compared these limitations to a legal disability imposed on testators as a result of the archaic notion that every child and spouse has a right to inherit their respective parents or spouse. The aim of this study is that of assessing whether the institute of the reserved portion unjustly restricts the right of testators to dispose of their property. This shall be done by first analysing the origins of the reserved portion in an effort to establish its raison d’entre into Maltese law. This will then be followed by a discussion of the ways in which this institute of the reserved portion hinders a person’s right to dispose causa mortis, and in limited cases, inter vivos. Subsequently, the institute will be examined in light of the recent changes experienced by our society in order to assess whether the reserved portion is still necessary in this day and age. To conclude this study, remarks on the subject matter will be made and the question answered. An alternative to the institute of the reserved portion will also be proposed in the Conclusion of this thesis.