Wills are not known to make exciting reading. This is to be expected; they exist to rigorously portray the testator’s last will and testament, and therefore, there is little room for creative input. Indeed, all around the world, almost all wills contain standard legal terminology that will rarely capture one’s eye.
Well, except perhaps for the last will and testament of Charles Vance Millar (1853-1926), a cynical and rather haughty Ontario lawyer (also a bachelor) with a penchant for practical jokes, whose will has become part of Canadian legal history, for it was a will the like of which had never been seen. He famously opened his last will and testament with: “This will is necessarily uncommon and capricious because I have no dependents or near relations and no duty rests upon me to leave any property at my death and what I do leave is proof of my folly in gathering and retaining more than I required in my lifetime.”
His testamentary dispositions were all evident of Millar’s odd sense of humour and aversion to human greed. He left his summer home in Jamaica to three lawyers Millar knew despised each other. He gave stocks in a brewery to religious leaders known for their prohibitionist views, and likewise left shares of an Ontario Jockey Club to three men who fervidly opposed horse racing, provided that they became members of the club.
But it was perhaps his last clause that elevated this famous will into something not short of legal legend. He chose to bequeath most of his assets to the woman who, in the 10 years following his death, would have given birth to the largest number of children.
During his lifetime, Millar had been a wealthy man, and unsurprisingly, this peculiar testamentary disposition gave birth to a true and proper ‘sporting event’, what is known in Ontario as the “Great Stork Derby”. Eleven families literally competed to produce the most babies and win the ‘contest’. The will survived years of litigation, and a decade later, four mothers would have given birth to nine babies each, and would end up sharing the final prize, a dazzling $100,000 each (what would roughly be €1.6 million today).
Maltese law of succession has seldom enjoyed such a colourful history. This notwithstanding, we do have one law the nature of which is rather odd and controversial. This is the institute of law known as the legato di cosa altrui (translated to: the legacy of a thing belonging to someone else), a concept also present under Italian law.
This institute at law was the central theme in the judgment given by the Court of Appeal on July 12, in the names of Helen Vella et v Mario Vella.
Logic would say that one could only bequeath what is his; it would obviously be outlandish to think that the good old Joe Borg could bequeath the Auberge de Castille to his surviving nephew. But under our law, this could actually be done – obviously subject to some conditions.
Theoretically speaking, a testator is indeed permitted by law to bequeath the Auberge de Castille in his will
There are two manners by which a testator may dispose of his property causa mortis (upon his death): firstly, by nominating heirs, who would inherit all of the testator’s assets, and secondly, through legacies by singular title, where the testator would choose to leave a particular thing to a particular person who may not be necessarily an heir.
At law, once after the testator’s death the heirs accept the inheritance, they are responsible to actuate the legacies made in favour of third parties and deliver them according to the testator’s wishes. This is usually the main catch with becoming an heir; once one accepts the inheritance, he is made responsible for all ‘debts’ and ‘liabilities’ of the inheritance, including to deliver legacies in favour of third parties.
The general rule is that where the thing forming the subject of a legacy belongs to a person other than the testator, such legacy shall be null.
But the law provides for an exception: article 696 (1) of the Civil Code states that should the testator declare in the will that he knew that the thing was not his property, but the property of others, then the will is perfectly valid. In such a case, the heir (testator?) (who at law is responsible to deliver the legacy and give it those who are entitled to receive it according to the will) may elect either to acquire the thing bequeathed in order to make delivery thereof to the legatee, or to pay to such legatee the fair value thereof.
So theoretically speaking, a testator is indeed permitted by law to bequeath the Auberge de Castille in his will, as long as he declares in the will that he knows that it is not his. Then, it would be the (testator’s) heirs’ job to either acquire it and deliver it to the legatee or pay a fair price therefor. If the heirs then deem such an undertaking to be too onerous, they could just simply renounce to the inheritance and be released from any obligation connected with it.
In Helen Vella et v Mario Vella, it transpired that the testatrix had left the respondent the use and usufruct of a property while she admitted knowing that it was not entirely hers (she owned only a sixth undivided share – which was also left to the respondent). Plaintiffs sought to challenge that right of use and usufruct granted to the respondent on the property as a whole. By means of a judgment of April 24, 2014, the Civil Court, First Hall rejected the plaintiff’s demands.
The plaintiffs appealed.
The point in issue was whether the legato di cosa altrui mentioned in the will could affect that part of the property belonging to third parties – in this case, the plaintiffs, who had also benefitted from the very same will.
The Court of Appeal confirmed that for a legato di cosa altrui to be valid at law, the declaration mentioned in article 696 (1) of the Civil Code is a must. Without it, the legacy would be null. The Court continued that it is then the heir’s responsibility to acquire the object in merit, or else pay its value to the legatee. Where the object is already in the heirs’ possession, then they would no longer be able to opt for the option to pay its value – and must therefore deliver the object according to the testatrix’s last wishes.
The Court of Appeal considered that in this particular case, the deceased’s wishes were fully valid at law, and once the plaintiffs decided to acknowledge her will and accept the legacies they themselves had received, then they were bound by all other obligations in the same will, including to grant respondent the use and usufruct of the property in question.
In conclusion, the court confirmed the judgment of the Civil Court, First Hall and rejected the appeal.
Carlos Bugeja is senior associate at Azzopardi, Borg & Abela Advocates.