The rules of substitution and representation under the rules of succession : a comparative study

Abstract

This thesis deals with the rules of substitution and representation under the law of succession. Particular attention is given to the modes of how the rules of substitution and representation operate. One may notice that these nlles existed under Roman law, and basically modem legislations adopted the same concepts as those found under Roman law. In effect Chapter 1 deals in some detail with how, Roman law applied the rules of substitution. The chapter focuses on how the rules of substitution applied under Roman law. Obviously when speaking of the rules of substitution this refers to direct substitution, Substitutio pupillaris and Substitutio quasi pupillaris. The same chapter also focuses on the rules of Representation under Roman law. One may notice that under Roman law the rules of representation applied both in the direct line and in the collateral line. Chapter 2 deals with the rules of substitution under Maltese law. A reference is made as to the ways of how a substitution can take place. The law of succession under the Maltese Civil Code, in contrast to Continental legislation provides for the possibility of a substitution for a minor in case he deceases when still a minor and without any issue. The Maltese Civil Code also provides for a substitution quasi pupillaris which means that the testator has the opportunity to substitute a person who has been appointed as an heir/legatee and consequently deceases in a state of insanity. In chapter 3 the concept of tacit substitution is tackled. A careful analysis is made to see what happens when the testator appoints an heir/legatee, and the appointed heir legatee predeceases the testator. Obviously in such a situation one presumes that the testator did not amend his will in the meantime. Basically tacit substitution takes place when the children or descendants of the predeceased heir/legatee are related by consanguinity to the testator. In other words the concept of representation is applied in testate succession. Representation may take place in the direct line ad infinitum while in the collateral line up till the third degree. The final chapter regards the concept of representation in the law of intestacy. The concept of representation under the law of succession presents us with the scenario where a person deceases intestate. If any of his children predecease him his descendants if any would represent him and be entitled to the share of their parent. In order for representation to take place there has to be a link by consanguinity between the decujus and the beneficiaries.