A Reader, who is legally separated, has been living for the last five years with a female friend. They are not married and they have agreed to remain so for good. The reader has two children from his marriage, who have broken off relations with him since he began his relationship with this new friend. Now he intends to go before a notary to make a will bequeathing most of his estate to his friend and leave only a small sum to be divided among his two children.

What is the reader's position at law?

Much depends upon whether the testamentary disposition that the reader intends to bequeath to his friend would be more than the disposable portion of his property, thereby violating the legitim due by law to the descendants of the deceased.

Legitim is that portion of the property of the deceased which is saved by law to the descendants, and on failure of descendants, to the ascendants of the deceased. According to section 616 (1) of the Civil Code, the legitim due to the children, shall be a third of the property of the deceased, if the children are not more than four.

Therefore, since the reader has two children, at least one-third of his estate shall be bequeathed to them. This portion shall be divided equally among the children. Furthermore, the legitim shall be due in full ownership and is shall not be lawful for the testator to encumber it with any burden or condition.

When computing the amount due as legitim, one must take the whole of the estate and subtract from it the debts due by the estate and the funeral expenses. If what the reader intends to bequeath to his friend exceeds the disposable portion allowed by law, it shall be liable to abatement limitedly up to that portion, at the time of the opening of the succession, provided that the demand is made within ten years from the day of the opening of the succession.

For the purposes of determining the abatement, the following rules shall be observed: (a) all the property of the testator existing at the time of his death shall be formed in one whole bulk after having deducted therefrom the debts due by the estate; (b) any property which has been disposed of by way of donation shall be then fictitiously added, movable property being reckoned at its value at the time of the donation, and immovable property according to its condition at the time of the donation and its value at the time of the death of the donor; (c) the disposable portion shall then be computed according to the estate thus formed, regard being had to the rights of such persons as are by law entitled to a share of the estate of the testator.

Send your legal problems, of general public interest, together with your name and address, to: The Lawyer, c/o The Sunday Times, PO Box 328, Valletta CMR 01 (fax: 2124-0806; e-mail: sunday@timesofmalta.com).

Sign up to our free newsletters

Get the best updates straight to your inbox:
Please select at least one mailing list.

You can unsubscribe at any time by clicking the link in the footer of our emails. We use Mailchimp as our marketing platform. By subscribing, you acknowledge that your information will be transferred to Mailchimp for processing.