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Legatees must file for court action against all heirs including those objecting to the legatee being admitted into possession of the property.

The First Hall Civil Court in a partial judgement in the names of Odette Abela vs Josephine Cassar delivered by Honourable Judge Lawrence Mintoff on the 20th May 2019 decided that the institute of legacy is to be considered as indivisible and therefore if there is disagreement on the part of one or more of the heirs as to whether the legatee should be admitted into possession of the property devolved upon the legatee, then the latter must proceed with filing an application in Court against all the heirs and not solely against that heir or heirs who would be objecting to the legatee being admitted into possession of the property.

Namely the plaintiff and the defendant in this case are sisters and the dispute revolved around a number of properties that had been bequeathed to the plaintiff under title of legacy by their parents Nazzareno and Riccarda sive Ludgarda Abela. By means of their will and testament their parents had instituted all their six children as their sole universal heirs, including the plaintiff and the defendant. However, they had bequeathed a number of properties to the plaintiff under title of legacy. The other heirs and siblings of the parties had already agreed and admitted the plaintiff into possession of the properties, with the exception of one, by means of a deed recorded in the acts of Notary Dr Joelle Cortis dated the 27th July 2018. Notwithstanding this, the defendant was refusing to appear on such a deed and in view of her sister’s refusal, the plaintiff filed a case in Court requesting the Court to order her sister to admit her into the possession of the properties that had been bequeathed to her by their parents under title of legacy.

In her sworn reply, the defendant amongst other pleas raised the preliminary plea that to ensure the integrity of the judgement and the proper administration of justice, the case had to be instituted against all of the heirs and not only against the defendant since the obligations of the heirs towards the legatees are indivisible and therefore there was the need to call upon the other siblings to join the suit.

From her end, the plaintiff argued that the legacies bequeathed upon her by her parent were equivalent to a debt of their parents’ estate and therefore the obligation of the payment of the legacy was such as to give rise to the dispositions that regulate solidarity in the obligations and therefore any one of the debtors, or in this case the heirs, could be actioned in order to effect the obligation.

The Court held that the theory of the plaintiff, that the legal position of a legatee is equivalent to the position of a creditor of the estate, was true and it had been substantiated in previous judgements of our Courts as well as by legal jurists. This position is considered as being as such since although the legatee would be considered as the owner of the property that would have been bequeathed upon him, his right remains uncertain and subject to contestation until the legatee is admitted into possession of that property by the heirs. In a previous judgement in the names Rev. Father Franġisku Azzopardi noe v Maria Hilda sive Hilda Cauchi decided by the First Hall Civil Court on the 14th October 2004 it was held that until the heir releases the property of the legacy, the legatee may not obtain possession of the said property and therefore the legatee’s right of ownership would be an abstract right in the sense that he would not have the right to exercise such right.

With regards to the indivisibility of the obligations of the heirs, the Court referred to article 734(1) of the Civil Code which states that where no one of several heirs has been particularly charged by the testator with the payment of the legacy, all the heirs shall be liable for the payment thereof, each in proportion to his share in the succession.

Moreover in terms of Article 940(1) of the Civil Code, in all cases, with respect to the creditors, each of the heirs shall be personally liable for the debts of the inheritance, in proportion to his share.

However, notwithstanding the above, the Court agreed with the position of the defendant that this state of indivisibility does not equate to the situation where the plaintiff would be able to choose to proceed with filing a case against any one of the heirs since this might affect the position of the other heirs. Moreover, the Court held that in this case, although this judgement was limited to the defendant’s preliminary plea, from the acts of the case it had resulted that in one section of their father’s will there was a clause that stated that should any one of the heirs attack his will then that heir would have renounced to their right of heir or legatee and they would only have the right to receive the reserved portion. The defendant’s siblings, including the plaintiff, had, in fact, attacked that will by means of a separate case which has become final, and therefore the defendant is arguing that they should not have admitted the plaintiff into possession of that property.

In view of this, the Court whilst acknowledging that this judgement was not intended to go into the merits, the preliminary plea had not been raised in a vacuum and was closely linked to the other pleas raised by the defendant. Therefore, in an effort not to prejudice the integrity of the judgement and to avoid any further judicial proceedings between the parties, the Court ordered that the other heirs and siblings of the parties were to be called to join suit and the Court will resume to hear the case on the other pleas and merits raised by the parties.

Av. Malcolm Mifsud


Mifsud & Mifsud Advocates

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