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Rights of property heirs

The First Hall of the Civil Court (Constitutional), presided over by Mr Justice Joseph Zammit McKeon, on October 23, 2012, in the case “Anthony Camilleri and others vs Mary, wife of Peter Paul Camilleri” held, among other things, that it held that article 615 (1) (pre-2004 amendments) of the Civil Code, dealing with legitim, did not violate the rights of the testator and of the heirs in the enjoyment of their property, in the manner safeguarded by article 1 of the First Protocol of the European Convention of Human Rights.

The facts in this case were as follows.

The heirs, who accepted the inheritance without conditions, were obliged to pay the legitim to the persons so entitled

By decree of the Court of Magistrates (Gozo), the court made a reference to the Constitutional Court to decide whether article 615 (1) of the Civil Code (as it stood prior to the 2004 amendments) violated the fundamental human rights of a testator and the heirs under article 1, First Protocol of the European Convention Human Rights (right to the enjoyment of property).

Article 615 (1) (pre-2004 amendments) of the Civil Code provided that: the legitim was a portion of the estate of the deceased, which by law devolved to his/her descendents and, in their absence, to his/her ascendants.

In proceedings before the Court of Magistrates (Gozo), Anthony Camilleri and others requested payment of their reserved portion of the estate of the late Ursola Camilleri who died on April 21, 1997. The defendants, Mary Camilleri and others, claimed that the imposition of the legitim under article 615 (1) of the Civil Code (pre-2004 amendments) violated the human rights of the testator and heirs under article 1 of the First Protocol of the Convention of Human Rights.

The Attorney General submitted that this provision of our Civil Code on legitim was not in breach of human rights (article 1), as there was no loss /expropriation of private property.

The heirs could not claim to have suffered a violation of human rights (right to property), as assets comprising the reserved portion (legitim) never passed on to them. The legitim was that portion of the estate of the deceased which by law was reserved to the children. It was a form of intestate succession which devolved ex lege. Save for this legal limitation, a person had the ability to dispose of his assets as he/she pleased. This restriction was intended for a legitimate purpose, maintained the AG.

The institute of the reserved portion had a social aim: to protect the foundation of society and family relations, especially between children and parents. The European Court of Human Rights had the opportunity to examine the reserved portion in the case “Marckx vs Belgium” dated June 13, 1979. The court examined article 1 of the First Protocol and the reserved portion and found no violation.

There was no loss of property in the circumstances. It could not be stated that the testator suffered any human rights infringement. Any right of action which was available to the deceased but not exercised did not pass on to the heirs. The reserved portion, argued the AG, did not devolve to the heirs and therefore there was no loss of rights. A testator was precluded from disposing the reserved portion. This limitation was for a legitimate purpose in order to protect the foundations of society.

The defendants put forward the argument that upon the death of Ursola Camilleri, her estate devolved to her sole heir, as the other heirs had renounced the inheritance. It was stated that the payment of the legitim not only affected their inheritance but it also involved a reduction in the quantum of the legacies, which exceeded the disposable amount. This prejudiced the heirs and the legatees and amounted to an expropriation of their assets without compensation, in violation of article 1 of the First Protocol of the European Convention.

Allegedly, as the law stood, the testator was not free to dispose of his assets after his death. Nor was there any obligation on a state to ensure that children were entitled to inherit their parents. Defendants maintained that there was nothing in our law which precluded the application of article 1 in matters of succession.

Defendants contended that there was no general interest to safeguard the legitim. Just as a person could freely dispose of his assets during his lifetime, a person should have the freedom to dispose of his property causa mortis.

Plaintiff Anthony Camilleri and others, on the other hand, claimed that there was no breach of human rights. They said that a testator had no reason to contest the legitim due to the children. In fact, it did not affect his rights during his lifetime and the heirs inherited the estate, save for the reserved portion.

The heirs had an option to accept the estate of the deceased without condition or with the benefit of inventory or to renounce the inheritance. The heirs, who accepted the inheritance without conditions, were obliged to pay the legitim to the persons so entitled. The legitim passed ipso jure upon the death of the deceased and this reservedportion never appertained to the heirs.

The heirs in this respect did not suffer any loss of property. It was not possible for the heirs to accept the inheritance without condition and later refuse to pay the amounts due in legitim. The reserved portion did not devolve to the heirs and never became part of their estate. The heirs could not claim to have suffered a loss of rights, under article 1 of the First Protocol. The institute of legitim was in the public interest.

The court made reference to the Civil Law notes of Victor Caruana Galizia.

Under Article 1 of the First Protocol, it had to be established whether there was a violation of the right of every natural or legal person to the peaceful enjoyment of his possessions, and whether any restriction was in the public interest and subject to the conditions provided for by law and the general principles of international law. To be in a position to invoke article 1, an applicant had to show that he suffered a violation.

The heirs could not advance a claim which the testator should have raised during her lifetime, noted the court. As regards the heirs’ human right to property under article 1, the reserved portion did not pass to them and did not become part of their estate. The heirs therefore had no rights over the reserved portion under Maltese law, pre-2004 amendments.

It was not even necessary for the testator to mention the legitim in their will.

The court said that as the law stood pre-2004 amendments, the heirs had no right to complain of any breach to their right under article 1, First Protocol, as they did not suffer any loss of peaceful enjoyment of their possessions, in particular since the property comprising the legitim was not in their possession. The heirs suffered no loss of possession. Nothing was taken from their estate by virtue of article 615 (1) of the Civil Code. It was not even necessary for this court to decide whether the legitim was in the general interest.

For these reasons, on October 23, 2012, the First Hall of the Civil Court declared to be unfounded the claims of the heirs Mary Camilleri and others which gave rise to this constitutional reference.

It held that article 615 (1) (pre-2004 amendments) did not violate the rights of the testator and of the heirs in the enjoyment of their property, in the manner safeguarded by article 1 of the First Protocol of the European Convention of Human Rights.

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