The law provides that the widow of a divorced husband is entitled to receive her full share of the reserved portion. This was held in a judgement in the names of Claudette Camilleri -v- Christopher u Sven aħwa Camilleri et, decided on 22 April 2021 by the First Hall of the Civil Court presided over by Madame Justice Joanne Vella Cuschieri.
The Plaintiff, Claudette Camilleri explained to the Court in her sworn application that her husband Charles Camilleri was separated from his previous wife in 2004. He had two children from his previous marriage, the Defendants, Christopher and Sven Camilleri. In the separation contract, both agreed that they are not to inherit each other, but Charles Camilleri did not register a new will, after he had done a unica carta with his previous wife. The Plaintiff and Charles Camilleri had a 13 year relationship before getting married, but he died 6 months after. She accused the children of liquidating their father’s investment and were to sell some immovable property. The Plaintiff claimed that she is entitled to a reserved portion in terms Article 631 of the Civil Code and asked the Court to preserve Charles Camilleri’s estate and order the Defendants to give her the reserved portion, as prescribed by law.
The Defendant filed a statement of defence and argued that they never denied that the Plaintiff has a share of the estate by allowing her to purchase 1/3 of a property owned by the Housing Authority, since the Authority did not accept her to purchase the property in full. She refused to vacate the property in B’Kara.
The Court held that the reserved portion is regulated by Articles 615 and 631 of the Civil Code. Article 615 reads:
“615.(1) The reserved portion is the right on the estate of the deceased reserved by law in favour of the descendants and the surviving spouse of the deceased.
(2) The said right is a credit of the value of the reserved portion against the estate of the deceased. Interest at the rate established in article 1139 shall accrue to such credit from the date of the opening of succession if the reserved portion is claimed within two years from such date, or from the date of service of a judicial act if the claim is made after the expiration of the said period of two years:
Provided that the Court may, if the circumstances of the case so require, decide not to award any interest or establish a rate of interest which is lower than that stipulated in article 1139”
Article 631 states the surviving spouse has a right to be assigned ¼ of the estate if there are children of the deceased.
The Court referred to a previous judgment Joseph Portelli et -v- Rita Portelli decided on 15 April 2004 that the value of the estate is calculated at the time of the opening of the will. The debts have to be factored in and any assets which were donated by the deceased. In the judgement the court calculated all these factors and listed all the assets and liabilities of the estate.
As to the Plaintiff request for interest on her reserved portion, the Court pointed out that Article 615(2) dictates that interest must be requested within two years from the opening of the will. The Court could give a lower percentage of interest is it deems it correct. The Plaintiff had filed a judicial letter in 2015 and a year later filed this action, meaning the action was done within 2 years. The evidence also showed that there was correspondence with the Housing Authority in order to find an amicable solution and therefore, the Court did not see it necessary to add interest, when the Defendant offered the Plaintiff 1/3 of the apartment. The Defendants in fact presented copies of letters to he Housing Authority showing that they had no objection for the Plaintiff to purchase 1/3 of this apartment.
The Court then moved award the Plaintiff €19,868.43 as her reserved portion of her late husband’s estate.
Av Malcolm Mifsud
Mifsud & Mifsud Advocates
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