A will or testament is a legal document by which people declare how they wish that their property is to be distributed after death.
- Ordinary Wills
Wills are created by a notarial act. An individual goes before a public notary serving in Malta and declares how the property left behind will be divided. The notary takes note of the person’s wishes and draws up a will accordingly. The will is then read out before two witnesses and the will is signed. The will is kept locked at the notary’s personal archives and no person shall have access to it.
The notary will inform the Malta Public Registry that a will by that individual was drawn up at the notary’s office. The reason why the Public Registrar is informed that an individual made a will at a given notary is so that after that person passes away, the public will know where to find an individual’s will. Hence, anyone may check whether an individual made a will or not by searching at the Public Registry. The will itself shall, however, remain a secret until the death of the testator. It follows that the only thing ‘public’ about a will is that the public can know whether a given person made a will or not. The contents of a will are to remain a secrete till the person's death.
- Secret wills
A testator may draw-up a secret will, that is to say, a will that is not registered at the Public Registry. In this way the public will not know whether a person made a will or not. A secret will is deposited at the Court of Voluntary Jurisdiction and stored there instead at a notary’s office. The difference between a public and a secret will is that the public cannot know whether a secret will was made or not. It is only after a person’s death that the public will know whether the deceased made a secrete will or otherwise.
- Joint Wills
Spouses may make a will either separately or jointly. A joint will is often referred to as an unica charta will. Such wills have two sections: a section dealing with the wishes of each spouse.
- Opening of the Succession
Following the death of a person, the public may check whether the deceased left a notarial will by searching at the public registry or whether the deceased made a secrete will at the court of voluntary jurisdiction.
If the deceased left one or more wills, these will be released upon the presentation of the death certificate by the notary or the court of voluntary jurisdiction. It is only then that the heirs and legatees of the deceased will be certain.
If no will is found then the rules of intestacy apply to apportionment of the deceased’s estate.
- Can a will be changed?
A will cannot be changed, however, a new will may be drawn up. The new will may supplement the provisions of a previous will or annul it. There is no limitation on the number of times a new will may be drawn up. It follows that a will remains a draft until one dies.
- What Details Goes Into a Will?
When drawing up a will a person must consider the following:
- The heir(s)
The heirs continue the juridical personality of the deceased.
An heir has the capacity to collect all that is due to the debtor, while at the same time make good for all of the deceased’s obligations contracted before death. It will be the heir that will take possession of the deceased’s property on the opening of the inheritance. An heir must also make sure that the legatees receive what the testator left them.
While the heirs represent the deceased in all civil matters these do not continue to do so in criminal matters.
Through a legacy the deceased leaves an identified object or property to a specific person or group of persons. Those who receive a legacy are secondary to the heirs. Indeed, the person receiving the legacy must demand the object or property from the heir. The legatee does not carry on the legal personality of the deceased as this is only continued by the heirs.
- Testamentary Executor
One can appoint a testamentary executor whose role is to ensure that the will is properly executed. In practice, the testamentary executor will make sure that the estate is properly liquidated in accordance with the wishes of the testator and provided in the will.
- Reserved Portion
Persons who are unmarried or have no descendants may dispose of all their property as they wish. Persons who are married, in a civil union or have descendants are entitled to the reserved portion. Hence, if the deceased did not make provision for the spouse or any of the descendants, these may sue the heirs for the reserved portion.