Dr. Maria Grima, advocate
In the case Fenech et. v. Cutajar et., decided on 10th April 2018, the First Hall Civil Court presided over by Mr Justice Silvio Meli, discussed the manner in which the reserved portion due to the direct descendants of the deceased is calculated.
Facts of the case
In this case, Ms Fenech (plaintiff) and the defendants were siblings whose father, Mr Cutajar, had died in 2007. Throughout his lifetime, Mr Cutajar had made several wills with his wife (unica charta) by means of which he nominated his children as universal heirs in equal shares. A few years after her father’s death, the plaintiff had renounced her father’s succession whilst retaining her right to the reserved portion, commonly known as legittima, which is a portion of the estate of the deceased reserved by the law in favour of the direct descendants or the surviving spouse.
After making repetitive requests to her siblings to provide her with an inventory of the goods which belonged to their late father and to liquidate the reserved portion and settle its payment, the plaintiff instituted proceedings against her remaining brothers and sister. The plaintiff asked the Court to declare that she had a right to the reserved portion and to order the defendants to settle the relative amount which was due. While two of the defendants had no objection to giving the plaintiff the reserved portion which was due to her, they insisted that the plaintiff returns all that she had previously received from Mr G. Cutajar.
Legal Considerations of the First Hall Civil Court
The Court made reference to the case Nazzarena Sciberras et v. Joseph Schembri, decided in 2014, in which the Court quoted Torrente’s ‘Manuale del Diretto Civile Italiano’:
In order to calculate the estate that the deceased could have distributed by way of testamentary disposition, the following procedure must be followed:
a) Identify the extent of the goods which belonged to the deceased at the time of his death;
b) Deduct any debts which the deceased may have had;
c) Compile the donations which would have formed part of the estate.
In relation to the compilation of donations, Torrente holds that the estate of the deceased at the time the will is opened is calculated and the sum of the debts is deducted from the total amount. The property which the deceased may have donated throughout his lifetime is then added to the remaining amount. As a rule, the value of the property is to be calculated on its worth at the time the succession is opened.
The Court then proceeded to examine the applicable provisions at law being Articles 615, 616 and 620 of the Civil Code, Chapter 16 of the Laws of Malta. Article 615 defines the reserved portion as the right on the estate of the deceased reserved by law in favour of the descendants and the surviving spouse of the deceased. Article 615 proceeds to specify that [t]he said right is a credit of the value of the reserved portion against the estate of the deceased. Interest…shall accrue to such credit from the date of the opening of succession if the reserved portion is claimed within two years from such date, or from the date of service of a judicial act if the claim is made after the expiration of the said period of two years: Provided that the Court may, if the circumstances of the case so require, decide not to award any interest or establish a rate of interest which is lower… .
The Court observed that there were five siblings in total, the last one having died before the father. According to Article 616 of the Civil Code, the reserved portion due to all children … shall be 1/3 of the value of the estate if such children are not more than four in number or 1/2 of such value if they are five or more. Therefore, on the basis of this provision, Mrs Fenech would be entitled to ½ of 1/5 which amounts to 1/10 of her late father’s estate. The Court however proceeded to make reference to Article 631 of the Civil Code on the right of the surviving spouse and which provides that where a deceased spouse is survived by children or other descendants, the surviving spouse shall be entitled to 1/4 of the value of the estate in full ownership. Therefore while the reserved portion to which the plaintiff was entitled amounted to 1/10 undivided share of her late father’s estate, the Court had to calculate the reserved portion on the remaining share of the deceased after the share appertaining to the surviving spouse, being ¼ of the entire estate, was removed.
Decision
The Court upheld the plaintiff’s request and proceeded to liquidate the amount of the reserved portion due to her, with interest.