A general survey of the private International law of succession with special reference to Maltese law

Abstract

The origin of succession is the ancient principle of Roman law, defined by Julianus as the inheritance to the whole rights and obligations of a deceased persona (1) The heir continued to represent the person of' the deceased, and this took place equally under a will and upon intestacy This principle of Roman law has been modified substantially in the English system; but the only modification in the continental system has been the introduction by Justinian. of the benefit of inventory. In England, and in those countries the law of' which is derived from that of England, the only person entitled to deal with the property of the deceased is he to whom a grant has been made by some public, usually judicial, authority. This grant of the right of administration is in one of three forms: (a) Probate of a will, granted to one or more persons appointed by the will as executors; (b) Adlninistration bum testamento annexo' where no executor is appointed by the will, or where the appointment fails; (2) (c) Administration where the deceased left no will. The first and second form regulate testate succession; the third form regulates intestate succession. The executors and administrators become the personal representatives of the deceased. Their first duty is to clear the estate of liabilities; their second duty is to distribute the surplus assets of the estate among those persons who may be entitled under the will, or by law in case of intestacy. (3) The two distinct duties of administration and distribution are governed by different principles of private international law. (4) Administration is governed by the lox fori of the authority which grants the right of administration. (5) In practice, this is generally the law of the country where the administration took place. Distribution is governed, in relation to movables, by the lex domicilii of the deceased at the time of his death (6); and, in relation to immovables, it is governed by the lex situs. (7) In the continental system of law the entire property of the deceased person descends directly on the heirs nominated in the will or entitled by law as the case may be, and, occasionally, on the universal legatee, subject to the acceptance of the heirs or legatee. Where they accept, they are liable personally for the debts of the deceased; their liability is not limited to the assets but is enforceable against their private property. If, however, they are liable only to the amount of the property received by them, to which amount they are also liable for the particular legacies bequeathed by the will. (8) The Maltese law of succession (9) follows the continental system. No person is bound to accept an inheritance devolved upon him. Where it is accepted, it may be accepted unconditionally, or under benefit of inventory. (10) The effect of the inventory is (a) that the heir is not liable for the debts of the inheritance beyond the value of the property to which he succeeds; (b) that he may free himself from the payment of debts by giving up all the property of the inheritance to the creditors, the legatees, and even to the co-heir who does not similarly elect to give up all the property; (c) that his own property is not intermixed with the property of the inheritance, and he retains his right to enforce the payment of his own claims against the inheritance. (11) The question of probate, and the distinction between administration and distribution do not arise.