In the case Camilleri et v. Camilleri, decided on 28 February 2018, the First Hall Civil Court presided over by Mr Justice Mark Chetcuti, discussed one of the instances when an heir can be deemed unworthy of receiving property under a will.
In this case, the plaintiffs and defendant were the sons and daughters of the late Mrs Camilleri, who passed away in 2014. In 2011 Mrs Camilleri made a secret will in the acts of a notary, which was published and opened a few months following her death. The plaintiffs strongly believed that their mother had been intimidated and compelled by the defendant to make a secret will, which would automatically revoke all of her previous wills, and nominate him as universal heir on the secret will.
The plaintiffs proceeded to institute proceedings against the defendant on the basis of Article 605 of the Civil Code, Chapter 16 of the Laws of Malta, which provides that “where any person has compelled, or fraudulently induced the testator to make his will, or to make or alter any testamentary disposition he shall be considered as unworthy, and, as such, shall be incapable of receiving property under a will.”
The defendant argued that only him and his wife who had taken responsibility for the care of their mother, tended to her every need and visited her at the home for the elderly, where she was residing, twice a day. The defendant reasoned that their mother had every right to show a preference towards him and to express her appreciation for all that he had done for her when she could no longer take care of herself, especially since she felt abandoned by the rest of her sons and daughters.
From the evidence which was presented to the Court by the plaintiffs it emerged that Mrs Camilleri suffered from depression and also suffered three strokes which had paralyzed half of her body and affected her speech. A medical certificate had in fact been issued in which it was suggested that Mrs Camilleri be interdicted in 2010.To this effect, the siblings had filed an application to order that their mother be declared interdicted, and the request was upheld by the Courts in 2011. The plaintiffs testified about various instances in which the defendant had portrayed deceitful behaviour towards his parents and siblings. The siblings also testified that their late parents’ intention was that their estate was to be divided equally amongst the siblings.
The notary who published the secret will testified that he neither knew about the medical certificate which contained the recommendation for interdicted, nor did he know about the decree by means of which the Courts upheld that Mrs Camilleri be interdicted in 2011. The notary testified that when he went to the home for the elderly where Mrs Camilleri was residing to make the secret will, she was not accompanied by the defendant and did not give him reason to doubt her mental capacity, otherwise he would not have carried on. The notary claimed that when Mrs Camilleri expressed her intention of nominating only one of her sons as universal heir, the notary warned her of the disputes which may arise.
The defendant testified that it had been his mother who requested the services of a notary shortly before the secret will was drawn up and claimed he only discovered that a will had been made when he saw the notary’s invoice for his services. The defendant held that his mother had informed him that the notary had been summoned by the defendant’s daughter, Priscilla, at the mother’s request.
After considering the evidence which was brought before it, the Court held that the issue on which it was to decide was not whether or not Mrs Camilleri had the required mental capacity to make a will, but whether her true intention at the time she made her last will had been affected by any acts of intimidation, pressure or fraudulent inducing, in such a way that the final will would not reflect her volition. The Court acknowledged that the plaintiffs also built their case on the allegation that their mothers’ will had been made when she was not fit to understand what she was doing. Although the Court deemed the grounds to be somewhat contradictory when considered together, since the act of challenging a will for reasons of the intimidation which may have affected the testator’s volition presupposes the capacity of the testator, the Court decided to examine both possibilities.
On the action based on the mental incapacity of the testator, the Court acknowledged that the general rule is that a person is considered to have the capacity to make a will, unless proof to the contrary is brought by the party challenging the will. The principles which must be followed in cases in which the will is challenged are the following:
That the capacity of the testator to make a will is the rule and incapacity is the exception;
A person is considered incapable to make a will when that person does not have presence of mind and when the incapacity is proven by the party challenging the will;
In order for a testator to be considered as having the capacity to make a will, is not necessary that the testator display perfect sanity, but it is enough that he possesses the use of reason to a degree that allows for presence of mind.
That in order for insanity of the testator to be established it is required that grave circumstances be proven.
The Courts have been consistent in conveying their reservations to uphold a request to annul a will on the grounds of the mental condition of the testator, if the mental condition does not emerge from the facts in a certain and unequivocal manner and if the testator’s incapacity is not proven at the very moment in which the testator makes his will.
In this respect, the Courts held that the proof must be conclusive and any doubt must be interpreted in favour of the validity of the will.
On actions which are influenced by deceit and violence, the Court sought to determine the true meaning of ‘deceit’ at law, and made reference to the case Cachia v. Cachia:
In order for the deceitful actions to be considered as grounds for challenging the will’s validity, it must be proven that the deceit was such that in its absence, the testator would not have made the testamentary dispositions that were in fact made. The fact that the testator succumbs to the wishes of another individual is not sufficient in proving that the will is a result of deceit. It is crucial that the will of the testator be affected by deceitful actions and that the testator would otherwise have not disposed of property in his will in such a way, had the deceitful actions not been carried out.
The Court however added that all acts of care, caress, attention, suggestion and insistence which are not accompanied by malicious intentions do not constitute deceit.
The Court came to the conclusion that Mrs Camilleri did not have the volition or determination required at law to be able to dispose of her property in a will. In this respect, the Court considered the fact that Mrs Camilleri had already made a will (unica charta), with her husband, in which she bequeathed all of her property to her sons and daughters, to be divided in equal portions. When the Court compared this will to the secret will in which she preferred only one of her sons and excluded all the rest of her sons and daughters, the Court found the secret will not to be indicative of the testator’s true intentions. Therefore, after having considered all the facts at hand, the Court found that enough satisfactory evidence was brought to prove that at the time Mrs Camilleri had made the secret will, the volition of Mrs Camilleri, who was already vulnerable, was influenced by deceitful manipulation, which precluded her from making a will which reflected her volition.
The Court therefore declared the defendant to be unworthy of receiving property under a will, in terms of Article 605 of the Civil Code.
Dr Maria Grima is an advocate at GANADO Advocates.