An examination of the most significant amendments to the law of succession under Act XVIII of 2004

Abstract

The aim of this thesis is to examine the amendments to the law of succession under the Civil Code (Chapter XVI of the Laws of Malta), introduced by Act XVIII of 2004 which has recently come into force. Act XVIII 2004 introduced other amendments to the Civil Code, however this thesis only covers the most significant amendments to the law on succession. It consists in an examination of the law of succession as it was before the enactment of Act XVIII 2004, an examination of the new provisions introduced by the said Act XVIII 2004, as well as an evaluation and comparison of the legal position as it was before and after the amendments came into force. This thesis also attempts to anticipate the manner in which these new legal provisions will operate, as well as the effects that these amendments will have on the law of succession and on the rights of persons entitled to receive property by way of succession. This thesis therefore also includes my comments and opinions on the said amendments and their presumed effects, as well as on the manner in which these new provisions could be improved. This thesis is divided into five chapters, each covering a principal issue or institution which was affected by the said amendments. A thematic approach was therefore adopted when writing this thesis. Chapter 1 covers the amendments introduced to the institute of unica charta wills, not only regarding the manner in which these wills are now to be drafted, but also regarding the new requirements for the surviving spouse to incur forfeiture upon a revocation of such will. Chapter 2 examines the manner in which the nature of the legitim and that of the legitima portio, present before the amendments came into force, has been converted to a single reserved portion of the same nature, that of a credit, with all the legal consequences that this transition should bring about. Chapter 3 then covers one of the most important amendments introduced by Act XVIII 2004, that of bringing the rights of children born out of wedlock on an equal level to those pertaining to children born in wedlock and thus the removal of any discrimination (in line with fundamental human rights), which existed before the amendments came into force. Chapter 4 examines the increased rights given to the surviving spouse by these new provisions. Indeed Act XVIII 2004 grants such surviving spouse a much needed increased legal protection which was long overdue. The final Chapter examines new provisions aimed at facilitating the division of property deriving from an inheritance. This Chapter is quite complex as it relates to new lengthy provisions and thus in this Chapter I also attempted to identify the manner in which these new provisions should operate, as well as the benefits and shortcomings which these new Articles may produce.