Capacity to make a will

Abstract

The law of succession is that branch of law governing the transmission of the estate or of the particular property vested in a person at his death, to some other living person or persons. The law of succession is divided into (i) the law of testamentary succession regulating the devolution and distribution of the property of a person, who dies having made a will disposing of his property; and (ii) the law of intestate succession regulating the devolution and distribution of the property of a deceased person, which has not been disposed of by Sec. 625 of the Civil Code of Malta defines a wiII as "an instrument, revocable of its 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 of a part of his property." This is basically the definition given by Modestinus "voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri volit" By means of a will a person can bequeath the larger part of his property to those who cared more for him during his lifetime. As Toullier points out, a will is, after religion, the sweetest comfort to a dying man. "A testament is so called because it is evidence of a man's (1 ) state of mind testatio mentis" However the law precludes certain persons from making wills. In Malta active testamentary capacity is dealt with in the Civil Code: Secs. 634-636 and Sec. 648. Persons who have not completed the fourteenth year of their age cannot make a will and those between the ages of fourteen and eighteen can only make remuneratory dispositions. This incapacity of minors applies for males and females and notwithstanding that a minor is married. The reason why the law ascribes incapacity to minors is that a young person is immature and can easily be convinced to dispose in favour of another person: "ob defoctum consilii". Different countries grant young persons the right to make a will at different ages, varying from fourteen to eighteen years. Should such age limit be reduced? Should the law grant a minor the power to make a will with the consent of his parents or with the assistance of a Magistrate? Should the law grant the minor a limited capacity as it does in Malta (granting him the right to make remuneratory dispositions) in France (granting a person between sixteen and twenty-one the right to dispose of half of his property) and in Bulgaria (where a person who has completed his fourteenth year of age but not his eighteenth year of age, can dispose of his own earnings)? These problems will be discussed in Chapter II.