It is interesting to note that we have had judgments delivered by our courts where they called on our legislators to consider whether it was time to review the civil rules on disherison in the sense that they should no longer be supported, even though the reasons for disherison are exhaustively enumerated by law and never liberally applied or interpreted. Indeed, the ground of disherison must be proved by the party alleging such disherison.

Any interpretation of the will must be restrictive in that the testator's will and intention must be respected. The law allows derogation from the rule that all children must be left a portion by their parents. Yet, this requires that the ground(s) for disherison fall within the exhaustive list and that this be proved by heirs. Where the ground of disherison is not stated or is not proved, the person disinherited shall only be entitled to the reserved portion.

Maltese caselaw on this point is consistent in requiring a heavy burden of proof by the heir(s) invoking the disherison clause, and there has always been a restrictive interpretation simply because the concept is odious.

The Institute of Disherison enables the decedents to sanction the inappropriate conduct of their descendants, to whom they otherwise would have been obliged by law to bequeath a certain part of their estate or a sum of money.

However, notwithstanding the disinheritance of a descendant for any of the reasons mentioned above, if he has children of his own, the reserved portion of which he has been deprived will be due to his children. The right of these children cannot not be prejudiced even if their disinherited ascendant predeceases the testator.

Current legal provisions protecting the spouse from disinheritance reveal that many older provisions are unwarranted relics and that even newer ones have failed to account adequately for recent changes in family structure.

Even though, whenever a testator draws up a will, he or she is free to dispose of his or her property as they wish, there are certain justified limitations to such autonomy that do not necessarily stem from any specific provision of the law.

For example, not long ago, it used to be a common practice found in wills that if any one of the nominated heirs attempted any action to somehow contest the validity or contents of the will, or when a will is jointly drawn up by a married couple ("Unica Charta") and it is stated that they are bequeathing the estate to each other on condition that the surviving spouse does not remarry and such conditions are not observed, then any right to inherit would be forfeited. However, even here, we have had several judgments to the effect that, in spite of such conditions being laid down in the will, they were not given effect since they were deemed either in breach of one's fundamental human right or somehow not fair or just in the circumstances.

So, even when it comes to disherison the same line of reasoning can be applied. Indeed, there are many countries, such as France, that somehow directly or indirectly prohibit the institute of disherison in so far as being part of the freedom of the disposition of assets in the event of death interferes with the legislative solutions protecting persons close to the deceased.

In Spain, anyone wishing to disinherit a descendant has to apply to the court and obtain authorisation therefrom, but it can only be obtained on very restricted grounds. In the European Union, protecting the direct descendants' heritage remains the rule, while "inheritance" is the exception. A legal reserve is a guarantee for children not to be disinherited by their parents and deprived of part of their inheritance. Thus, the law protects them and allows them to obtain a share of their inheritance.

Apart from legal considerations justifying a call to do away with the disherison provisions, there are also various humanistic and social considerations that, perhaps, render that call even more impellent. Family life is often fraught. More so when a spouse or child gets disinherited. The best reason to disinherit a close relative may not be to punish the person but because you believe the money would more wisely go elsewhere, for example, to a kinder and/or needier relative or to a charity.

In any event, one must be sure to feel good long-term about disinheriting a person. A temporary flare-up should never outweigh the longer-term picture. Of course, the decision is not permanent. As long as you retain sufficient mental capacity, you can change beneficiaries later. Even if you feel there is a more worthy beneficiary and that you will continue to feel that way, think twice before disinheriting someone. Even if disinheriting is justified, that person probably will feel hurt and perhaps, rational or not, sue your heirs, likely costing them serious money, time and stress.

Blood is thicker than water. Thus, if other family members and friends learn of your disinheritance, they may heavily criticise you. Whatever the reason, close family members should never be disinherited. Being disinherited, particularly by a parent, can cause self-esteem to plummet and call a lifetime of memories into question. Now that should override any justification for disherison.

The most reliable way to relieve a symptom is to cure the disease. The interim cure here should be the court's refusal to give straightforward effect to a disinheritance provision.

Dr Mark Said is a lawyer