The implications of the Trusts and Trustees Act on the reserved portion provisions in the Civil Code

Abstract

Trusts law is an area of Maltese law which has been the subject of debate throughout the last few years. The two concepts of trust and the reserved portion have been viewed as incompatible, reflecting the two different origins from common law and civil law respectively. But are these concepts really incongruous? This thesis seeks to answer this main dilemma and analyses the way in which the Maltese domestic system of law seeks to create a system where the two concepts can operate side by side to ensure the fulfilment of the rights of both the beneficiary and the legitimary, through the Trusts (Amendment) Act, 2004 . The first chapter examines the philosophical aspect of succession and legitimary rights. In this way a sound basis is set for a discussion centering around the creation of rights through a system which looks at the notion of reserved portion as a need and a duty. Trusts in a civil law system is the topic tackled in the second chapter where the main issues and arguments brought forward by learned authors on this subject are dissected and upheld or criticised. The effect of the introduction of domestic trusts in the Maltese legal system is and its implications on rules of public policy is also discussed. The third chapter then enters the core of the subject by depicting in detail the status and rights of the legitimary before and after the Trusts (Amendment) Act, 2004. The penultimate chapter deals with the practical implications inherent in a claim for reserved portion exercised by the legitimary in a scenario where the decujus had during his lifetime or through a testamentary trust, settled assets under a trust. The final chapter then concludes this study with the examination of the basic link existing between the ideological basis and the practical implications of the trust and its uses.