A critical appraisal of the provisions relating to passive incapacity under a will : with an assessment of the constitutionality of their application

Abstract

My thesis is a critical evaluation of the laws regulating who may inherit under a will - and my analysis of this subject is done through different perspectives. In my first Chapter I deal with an evaluation of the law as it stood just before the recent amendments, then move on to a historical analysis of the provisions regulating who may inherit under a will, and in what proportion he may do so - a journey through the ages, from the initial conception of these rules by the Romans, through to the Code de Rohan, the Bando of 1788, the Code Napoleon, Sir Adriano Dingli's codification, and right up to the recent amendments introduced by Act XVID of2004. I then examine the jurisprudential element in Chapter 2, where I analyse the way the Maltese Courts have interpreted and applied the law as it stood prior to Act XVID of 2004. The amendments came into force very recently, and therefore have not yet been tried and tested by the Courts. I also examine recent judgments, wherein it was decided that certain provisions in the Civil Code (as they stood prior to amendment) were discriminatory, and, as such, unconstitutional. I have also focused on international treaties and Conventions, some of which have been signed and ratified by Malta, and the impact they have left both on Maltese and foreign legislative systems. In this part of the thesis I make reference to the decisions given by the European Court of Human Rights, which throw a light on the way the European Convention on Human Rights and Fundamental Freedoms should be interpreted and what safeguards it provides to the individual. Lastly, I examine some of the practical implications which may arise with the coming into force of Act XVIll of 2004, through the use of realistic case-studies, since there is, as yet, no case-law which may be referred to. These amendments have not perfected our Civil Code, and neither have I concluded that the law as amended is without its shortcomings. However, they have definitely helped remove some of the discriminatory elements present in our law, in particular with regards to the distinction between children born in wedlock, and children conceived and born out of wedlock, or adopted children. The removal of this discrimination, as well as the greater freedom allowed to testators to dispose of their estate as they best deem fit, have certainly rendered our law more constitutional. I conclude however that there are certain shortcomings which need to be addressed, to render the law on passive incapacity more constitutional, and more compatible with international human rights instruments, such as the position of the child conceived and born out of wedlock vis a' vis the estate of an intestate parent when such child is in competition with siblings who are not so conceived and born, as well as the transitory provisions which render the law applicable with immediate, and not with retroactive effect. This means that people who have inherited under a will which opened before the 181 March 2005, will find that their position will continue to be regulated by the law as it stood prior to amendment, and not by the new law - although there are several arguments against the introduction of a law with retroactive effect, as this is seen as potentially divesting certain individuals of their rights.