Mr Justice Mark Chetcuti delivered this judgment following an application filed by Carmelo and Josephine Abela against the Chief Government Medical Officer and the Ministry of Health.

 

The court heard that in 1935 Antonio Brincat had purchased this grave from the government.  he died in 1958 but his will, drawn up in 1944, stipulated that although his heirs and their children could be buried in this grave,it was then to be sealed permanently.  He stated in his will that he was imposing this condition in order that the bodies of himself and his wife would not be transferred to another site.

 

In March 2001 the heirs of Antonio Brincat had applied to the Burials department for permission to clean the grave, and to have its contents transferred to another site.  Permission was granted by the authorities.

 

In June 2002 the heirs sold the grave to Mr and Mrs Abela who were then informed by the Burials Administration Unit that in terms of the testamentary disposition no burials were possible in this grave.

 

Mr Justice Chetcuti said that there was no doubt that Mr and Mrs Abela owned the grave in question.  However, the authorities were correct to prohibit further burials in it as the will of Antonio Brincat had to be observed.  Unfortunately the authorities had granted permission for the remains of Mr Brincat and his wife to be removed from the grave - in express violation of his will - as they had not been aware of the provisions of the will.

 

It was the heirs of Antonio Brincat who had violated the provisions of his will, but his will was still valid and binding on both the heirs and the cemetery administration.  Therefore the grave had to be sealed permanently with no further burials being allowed.

 

The court therefore dismissed Mr and Mrs Abela's request to allow them to carry out burials in this grave.