A will (testment) is the ultimate expression of mortality salience; it is the manner in which a person acknowledges one’s finiteness, by regulating how one’s estate is to be divided when death’s unavoidable arms close in. This inherent desire in most to prepare for their death and leave no problems behind has given birth to the old idiomatic euphemism: ‘get your affairs in order’.
And indeed, many do.
Unfortunately, often times, wills create problems. Notable stories by authors such as Jane Austen (Pride and Prejudice) and Charles Dickens (Bleak House) are testament to the fact that wills are often not just legal documents but a common source of ugly disputes. Even Harry Potter had to engage in an inheritance struggle when the Minister of Magic would not hand him over Godric Gryffindor’s sword (which he had inherited from Albus Dumbledore), telling him: “That sword was not Dumbledore’s to give away” (apparently, the concept of ‘legato di cosa altrui’ is alien to the magical world).
Court cases about wills fought between family members are often lengthy, intense and downright ugly. Regrettably, brothers and sisters who would have grown up together often end up at the opposite side of the courtroom, gazing at each other with contempt and arguing until the bitter end.
This is why a number of testators opt to make provisions in their will against those who attempt to disrupt their succession plans. More often than not, the idea is to discourage rebellious behaviour from those who are not too happy with what they end up getting. The idea is to keep familial peace.
One will find many wills stating that those who cause trouble (“min jaqla’ l-inkwiet”) will lose their right to claim their share from the inheritance. This condition is commonplace and may be perfectly valid.
The case of Angela Debattista v Joanne Debattista et (ultimately decided by the Court of Appeal on October 6 – 908/10/1) was about a similar clause. In their last will and testament, the testators (the mother and father) had stated in article 10 that those heirs who contest the will or cause trouble will forfeit all their rights granted by the will, and will only have the right to claim the reserved portion (“jekk xi ħadd mill-imsemmi eredi jipprova b’xi mod jatakka kwalunkwe parti ta’ dan it-testment u/jew jaqla’ l-inkwiet, huwa jiddekadi mill-benefiċċji kollha lilu mħollija f’dan it-testment u jieħu biss il-leġittima”).
The father passed away and his estate devolved onto his heirs.
The plaintiffs (the mother and four of the heirs) claimed that the respondent (the other heir) had a gambling problem and owed some money to a third party. She had guaranteed her debt against her one-tenth undivided share of a property in Qawra, which she had inherited from the father together with her siblings. They claimed that her actions affected everyone else, since the plaintiffs owned the other nine-tenths (9/10) of the property.
One will find many wills stating that those who cause trouble will lose their right to claim their share from the inheritance
Eventually, the creditor had instituted proceedings against the respondent to recover this debt and had even requested that said property be sold by judicial auction (subbasta). The plaintiffs had been trying to suspend the execution of the subbasta and had even filed a lawsuit in order to try cancel the hypothec which respondent had registered on the property in Qawra. Eventually, yet another hypothec was constituted against said property, this time by a new creditor. Furthermore, on several occasions, other creditors of the respondent had visited the plaintiffs, demanding to be paid.
The plaintiffs complained that they had inadvertently been dragged into the respondent’s woes. They had even been risking that their property is sold by court auction and this through no fault of theirs. To the plaintiffs, the respondent’s unruly behaviour was such as to cause serious trouble (inkwiet) to the plaintiffs, thus triggering the forfeiture of all benefits acquired by the respondent through the father’s will. To them, the respondent’s behaviour qualified as ‘inkwiet‘ as defined in article 10 of the will, and therefore, the respondent could no longer benefit from the will.
The first court (per Judge J. Zammit McKeon) rejected the claim. The plaintiffs appealed, pleading to the Court of Appeal to conclude that the ‘trouble’ caused by the respondent due to her indebtedness qualified as the ‘trouble’ referred to in the father’s last will and testament. They reiterated that the term ‘inkwiet’ in the will was not restricted, and indeed, the respondent’s woes had adversely affected the inheritance to which the will refers.
In its judgment, the Court of Appeal agreed with the first court that when referring to the possibility of an heir causing trouble, the testator was referring to trouble having to do with the division of the will itself and not trouble in a general sense. While it was true that the respondent’s actions could have indirectly affected the will, she had done nothing to contest the will and all guarantees were limitedly granted on her own share. Furthermore, the respondent’s gambling habits had been long time coming, and had already been there before the will was drafted; had the testators wanted to provide measures against the respondent’s gambling habits, they would have been more precise and referred to it specifically, and would have excluded her completely from the will. The fact that they did not confirmed the literal and restrictive interpretation of what they said, similar to what others have done before.
The Court of Appeal concluded that as troublesome as the respondent may have been, it could not be said that she had caused trouble (inkwiet) in breach of article 10 of the will.
As a result, the Court of Appeal confirmed the decision of the first court, rejected the appeal, rejected the plaintiffs’ case and ordered them to pay the costs of the case.
Carlos Bugeja is a partner at Azzopardi, Borg & Abela Advocates.