Forms of wills : a historical and comparative survey

Abstract

There are two methods by which a person's property devolves, on his death to his heirs: either by law, in which case it is the provisions of the law itself which regulate the succession of that particular individual, or else by Will, where the person concerned can depart from the provisions of the law and dispose of his worldly goods in the manner in which he sees fit, subject of course, to certain limitations imposed by the law itself, such as legitim. Of course it is possible for a person's succession to be regulated both by law and by will, e.g. when he makes a will leaving only a legacy to some individual, but in general, especially in Malta, when one makes a will one does so to nominate one's universal heirs to the estate as a whole. It is obvious that a person's property, whether he likes it or not, will appertain to a particular individual or individuals after his death, but whereas in Intestate Succession the decujus has absolutely no say in the matter (since he did not say anything in the first place) and his property will vest in his children or nearest relatives, or even in the State, as far as Testamentary Succession is concerned the manner in which the deceased's property will be distributed is, subject to the abovementioned limitations, regulated by the wishes of the testator as found in his Will. Moreover the procedures that the heirs of a person who has died intestate have to go through are, at least as far as Malta is concerned, longer and more complicated than those followed by the testamentary heirs of a testate person. The concept of universal succession, though found in almost every legal system, is descended from Roman law and through it have been derived various rules on testamentary succession which are applied by present day lawyers without their discerning their relation to the basic theory, this being the principle that a man lives on in his heir, a principle which can be described as the centre round which the whole law of testamentary and intestate succession orbits.