The practical implications of act XVIII of 2004 with particular reference to the reserved portion

Abstract

Indeed, the laws regulating the institute of reserved portion exist in order to safeguard complex but deeply socially embedded issues of loyalty, protection and maintenance of familial relationships. Certainly, this thesis aims to highlight the substantial amendments brought forward by Act XVIII of 2004, particularly in relation to the reserved portion. Chapter 1 sets a general outline as to the foundations that gave rise to the institution of reserved portion and the way our laws evolved with the passage of time. Chapter 2 draws attention to the rationale behind the creation of the reserved portion. Therefore, the notion of the reserved portion will be examined by identifying its beneficiaries and its nature prior to the 2004 amendments and how it has been converted following the aforesaid amendments. Additionally, this chapter delves into the new concept of trusts and its impact in respect of one's right to the reserved portion. Chapters 3 analyses the rights and the amount of reserved portion pertaining to the descendants and the surviving spouse - prior and post the enactment of Act XVIII of 2004. This together with an examination of the action for abatement which is granted by law in favour of the beneficiaries of the reserved portion in order for them to have their rights safeguarded. Moreover, the reasons as to why a person could be disinherited or regarded as unworthy, and consequently forfeit his or her right to inherit the deceased, are emphasised. Chapter 4 examines the amendments introduced to unica charta wills and the concept of the legato de residua with reference to various case-laws. Chapter 5 deals with additional amendments brought forward by Act XVIII of 2004 concerning the increased rights given to the surviving spouse and to all children or descendants of the decujus. Indeed, this will give us a better idea as to why the 2004 amendments were so much longed for. Chapter 6 covers an area which was not properly dealt with by our legislators during the legislative debates. This relates to the notion of causa mortis and whether or not the beneficiaries of the reserved portion are to pay any duty in this respect. The final Chapter contains some personal general remarks as to whether the reserved portion should be retained and if so, who ought to be its beneficiaries. Hopefully all this will provide the impetus for a further sincere discussion in order to eliminate any remaining loopholes and legal deficiencies which are still present under our law of Succession.