The objective of this Act is to allow the implementation of the provisions of Regulation (EU) No. 650/2012 of the European Parliament and the Council of the 4th July 2012, on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matter of succession and on the creation of a European Certificate of Succession (‘Succession Regulation’).
By virtue of the Succession Amendment Act, if enacted in accordance with the current draft, the Civil Code (Chap 16 of the Laws of Malta) will be amended to include regulation of cross-border successions. A cross border succession covers the following scenarios:
- a succession which includes property in more than one country; or
- where the deceased is habitually resident in a country of which he wasn’t a national at the time of death; or
- where the deceased made a disposition of property in a country of which he wasn’t a national; or
- where the beneficiaries of the succession are habitually resident or are nationals in more than one country.
The Maltese Civil Court (First Hall) will be the competent court to deal with applications for a declaration of enforceability pursuant to the Succession Regulation. It will also be possible to appeal from such a decision in accordance with the otherwise applicable appeal procedures, being the procedures of Appeal under the Code of Organization and Civil Procedure (Chap 12 of the Laws of Malta). This presumes that an appeal can be filed based on both points of fact and law.
The Succession Regulation establishes that, in general, the applicable jurisdiction with regards to a succession as a whole shall be that of the habitual residence of the deceased at the time of his death (Article 4). However, the Regulation allows a choice of law to be made in favour of the law of the State whose nationality the deceased possesses at the time of his choice, or else at the time of his death (Article 5). In case of multiple nationalities, the deceased may choose the law of any of the States whose nationality he possesses. In the absence of such a choice being made, the law of the State of habitual residence of the deceased at the time of his death will apply. The only exception to this is when the deceased is “manifestly more closely connected with a State other than the habitual residence” of the deceased. In this case, the law of that other State can be the applicable law (Article 21).
In its current draft, the Succession Amendment Act will also introduce the European Certificate of Succession. This Certificate may be issued by the Civil Court (Voluntary Jurisdiction Section) in all cases, or by a warranted Notary, only in the case that all the beneficiaries are in agreement and have given their consent to the issue of the certificate. A European Certificate of Succession is issued in a prescribed form and is designed to enable heirs, legatees, executors or administrators to prove their legal status and/or rights in other member states. In fact, it is intended to have legal effect in all EU member states. This Certificate, upon its issuance, would be regarded as an authoritative document and may be used to prove the status of the heirs or legatees and their shares in the succession, the attributions of any specific assets to an heir or legatee and the powers of persons mentioned in the Certificate that may execute the will or administer the estate (Article 63). The Certificate is to be presumed to accurately demonstrate elements which have been established under the law applicable to the succession. Therefore, the heirs/legatees, executors or administrators shall be presumed to have the status and rights established in the Certificate.
The Succession Amendment Act also proposes an amendment to the Notarial Profession and Notarial Archives Act (Chap 55 of the Laws of Malta), in order to provide for the issuing of a European Certificate of Succession by a warranted Notary and to establish a procedure whereby the Notary must deliver a note regarding the same Certificate to the Public Registry for official recording of the Certificate.
If the Act is enacted in accordance with the current draft, the Public Registry Act (Chap 56 of the Laws of Malta) will also be amended in order to provide for register books for the European Certificate of Succession in both Malta and Gozo. These register books shall be for the registration of applications for the European Certificate of Succession, and a second one for the registration of issued European Certificates of Succession. The fees for such registration have also been added.
It is important to note that the Bill encompassing this Act has not yet entered into force. It is currently in its second reading before Maltese Parliament.