The law of succession in Private International Law

Abstract

The aim of this thesis is to examine existing Private International Law rules on succession in Malta at the present stage of development and to review some contemporary notions and important international Conventions which may leave an impact on Maltese law. In this dissertation I have distinguished between intestate and testamentary successions while respecting the dicta laid down by our courts, according to which, distinction must be made between succession to movable property governed by the lex domicilli, and succession to immovable property governed by the lex situs. In Chapter One, a cursory examination of the major general principles which surround the law of succession in Private International Law has been drawn. The two major systems of succession, namely the unitary system and the scission system, have been examined. In Malta our Private International Law regime is scissionary in nature. An analysis of the theory of renvoi and of characterisation have also been made. In Chapter Two, intestate succession in private international law has been examined, distinction being made between intestate succession to movable property and intestate succession to immovable property. Of particular note in this chapter is the discussion on the personal law of the deceased and the critical analysis on the /ex situs in succession cases. Chapter Three embarks on the examination of the essential elements which must be present in order to have a valid will, namely, the capacity to make a will, essential validity and formal validity of wills. With reference to capacity to make a will, the distinction between capacity to make a will of movables and immovables has been made. Of particular interest in the section on essential validity is the discussion on Compulsory statutory requirements. In the field of formal validity of wills an examination into Section 682 of the Civil Code and reported case-law on this section has been made. Reference is also made to common law, English statutes and international conventions in the field. Construction of wills, the notion of professio juris and revocation of wills have also been discussed. The final chapter deals with reform in private international law, and the drafting and philosophical problems with which the conflicts of law legislator is faced. In this chapter the incorporation of the convention Registration of wills and The Hague Convention on the Conflicts of Laws relating to the form of testamentary dispositions is advocated.