One cannot demand the execution of his rights to an inheritance whenever he pleases. Such an action expires after 10 years from the day of the opening of the succession, that is from the death of the testator. This applies to any person demanding an inheritance, legacy or the reserved portion.
It is often wrongly assumed that a person has two choices: he can either accept an inheritance or renounce to it. There is indeed a third option, the acceptance of an inheritance under the benefit of inventory.
An heir’s right to avail himself of the benefit of inventory when assuming the status of heir is considered sacrosanct by Maltese law and any testamentary disposition denying this right is considered invalid.
Simply put, through this legal tool, one will accept to inherit, only after ‘seeing’ what is in the estate of the deceased. It is a cautionary move for those not entirely certain that the estate of the deceased is worth inheriting.
The acceptance of an inheritance with the benefit of inventory shall be made in the registry of the Civil Court (Court of Voluntary Jurisdiction) by the person wishing to avail himself of such a benefit. Upon filing a note to this effect, the person desiring to make up the inventory shall declare on oath that he or she shall faithfully describe the estate.
Such a description must specify in detail all debts or liabilities of the estate, as well as all wearing apparel, household goods, silver and gold articles, jewellery, money, other movable property, as well as the value of such property, debts due to the deceased, all rights of action and all immovable property. Together, such would constitute the contents of inventory.
An heir’s right to avail himself of the benefit of inventory when assuming the status of heir is considered sacrosanct by Maltese law
Among others, the effect of inventory as inscribed in the Civil Code is that the heir’s own property is not intermixed with the property of the inheritance. Moreover, one of the greatest advantages of accepting inheritance with the benefit of inventory remains that the heir shall not be liable for the debts of the inheritance beyond the value of the property. With the benefit of inventory, the heir cannot be compelled to satisfy claims out of his own property except to the extent of the balance which results to be due by him or her.
This was reflected in a judgment delivered by Judge Zammit Mckeon presiding over the First Hall Civil Court in the case ‘Cosaitis et v Loporto et’ (122/2018 JZM) on October 29, whereby the court dealt with a stalled final deed of sale.
The hopeful purchasers of a property in Senglea instituted proceedings against the defendants who were the vendors/co-owners of the property in question. Prior to the expiry of the promise of sale, the plaintiffs had filed a judicial letter summoning the defendants to appear for the publication of the final deed of sale, however, the defendants failed to appear for the said final deed.
Unfortunately, during the period of promise of sale, one of the vendors fell seriously ill and upon seeing such, his brother (also a co-owner) graciously offered the purchasers to move the appointment set for the final deed to a closer date. At the time, the purchasers had refused and had claimed that the notary who was to publish the deed was abroad.
The vendor who was ill passed away prior to the date set for the final deed of sale. His untimely passing complicated matters both for the purchasers as well as for the other co-owners who were still interesting in selling the property. One of the co-owners even offered to sell his undivided share. However, the problem lied with the heir of the deceased.
The deceased vendor had nominated his wife as his universal heir, who, in turn, accepted her late husband’s inheritance with the benefit of inventory, knowing that her late husband had a number of creditors to settle dues with. She claimed that appearing on the final deed prior to deciding whether she would be accepting the inheritance without restrictions would prejudice her position prior to her knowing all the facts.
This left the purchasers with little alternative but to institute legal proceedings against the vendors and the late vendor’s universal heir, seeking an order from the court to force the co-owners to appear for the final deed according to the terms of the promise of sale signed in 2017, with the nomination of curators to represent any ‘no-shows’ if necessary.
The court considered that during the continuance of the time allowed for making up the inventory and for deliberating, the person entitled to succeed is not bound to assume the status of heir. However, such person shall be considered curator at law of the inheritance and may be sued as representing the inheritance to answer claims brought against it.
Judge Zammit McKeon was very clear and concise in his decision. The court affirmed that the acceptance of inheritance with the benefit of inventory has the effect of keeping the heir’s property separate and distinct from the inheritance itself. The court confirmed that the acceptance of inheritance with the benefit of inventory still meant that the heir accepted the inheritance, and that no legitimate or legal cause was stopping the heir from appearing for the publication of the deed of sale.
Based on such reasoning, the co-owner who had inherited the deceased original vendor was ordered to appear on the final deed of sale on January 29, 2021, and a curator was also appointed to substitute her in case she fails to appear on the specific date for the final deed.
Rebecca Mercieca is a junior associate at Azzopardi, Borg & Abela Advocates.
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