The Law of Disherison

Mario R . Bonello

Adopting a comparative law perspective in deliberations on Roman law gives rise to a fundamental problem: the fact that the subject matter is inexhaustible. The Roman law of succession is the most extensive branch of Roman law and if one also includes in these considerations references to the regulations adopted in other laws of succession – across the ages as well as in contemporary law – it renders any attempts to give a comprehensive account impossible, although one should not have any apprehensions about rising to the challenge. Nevertheless, when writing about the Roman legal framework and comparative law perspective, at some point one has to say that ‘enough is enough’. Every fragment of this study could be developed further: both regarding the Roman regulations and the comparative context. Not everything has been said in this book, and not only because the times when extensive summae were produced have passed. No one writes works of this kind anymore and it would also be difficult to find someone willing to plough through them. In fact no one is able to prepare such a book on account of the amount of information they would have to include. Fortunately it is not access to information that is a problem today. Information is relatively easy to obtain, although this can sometimes involve considerable financial costs. What seems to be most important is the approach taken. We expect keys to interpretation and, moreover, that they are presented in a concise and accessible manner. The Roman law of succession, which was so well developed and dogmatically rich, evolved over many centuries. At different stages of its history it adopted many regulations concerning the same issues. Sometimes these solutions were vastly different from one another. All of them were thoroughly tested for their usefulness, perhaps with the exception of the ideas known from some of the imperial constitutions in late Roman law. The Roman law of succession thus constituted a jurisprudential framework of concepts. This framework can be treated as the language used for talking about the law of succession in general, irrespective even of which legal tradition the binding regulations derive from. Knowledge of the Roman law of succession – but not superficial knowledge, for example of selected regulations and only from a particular historical period in Roman law – allows any law of succession to be described: not only in mixed jurisdictions or in common law. Secondly, the Roman law of succession creates the framework for discussion about the law of succession and the regulations adopted by particular countries: about reforms, in the case of some countries, and building from scratch in the case of others. Thirdly, on account of the legal experience and specifically as a language of understanding, it offers great opportunities for the debate on the unification of the law of succession in Europe. It is difficult to overestimate the importance of the Roman experience, particularly in the area of the law of succession. Andrzej Stelmachowski’s students remember how he would tell them that one can only prove that the regulations pertaining to the area of the law of succession actually work in the third generation. Therefore the risk involved in creating new solutions is always substantial: and it is not easy to correct them. And then again, representatives of the younger generations who take part in the law-making process do not always remember what their predecessors had in mind; whereas lawyers are typically conservative, hence their unwillingness to change a law that is already familiar to them, including their reluctance to go back to using old regulations. From the perspective of the history of the law of succession, the Roman regulations are not just well developed. We owe the dissemination of many solutions to Roman law. What I specifically have in mind here is the will, which was alien to ancient laws, including the oldest Greek law as well as Germanic law. Many other solutions only started to emerge as late as in Roman law. It was therefore not only more developed than the laws that preceded it, but it was also more advanced than many of the laws that came after it. In the Law of the Twelve Tables, the Romans already distinguished between testate and intestate succession. Testamentary freedom gained increasing importance in Roman law which is why this book is divided into two parts. The first part discusses the functioning of law in society in relation to claiming succession from the deceased, and the second deals with the legal conditions under which de cuius could decide about the fate of his estate in the event of his death. Therefore, in the first part, after presenting the general notions, I point to the values and principles of the law of succession, deal with the order of intestate succession and the fate of the estate after the testator’s death. The second part concerns the will: its external form, the internal requirements for disposing of the estate and the interpretation of wills. The titles of both parts: ‘the Law’ and ‘the Testator’ point to the fulfilment of social expectations, which is so important in the law of succession, and the role of an individual as a legal entity. Two issues are involved here. The first one is understanding the law. To this end, nowadays we often make many distinctions, and European lawyers have been trying, since the Middle Ages, to formulate the law which was known to the Romans – who used it and, one could say, ‘had a ‘feel’ for it – into total formulas which describe the possible regulations theoretically and taking an overall viewpoint. In this, or in any other way, we compare and study legal history to understand our system better. The second issue pertains to man, since it is man that the law is in fact concerned with. This is connected with the tendency to create as many legal instruments as possible that enable his needs and expectations to be fulfilled. This is valued by lawyers, who like to have a lot to choose from and who are always looking for an alternative solution, because it may turn out to be better and more convenient. Roman law should be included in analyses of comparative law. If these analyses are thorough and based on an understanding of the law and its mechanisms, aims, values and principles, and do not simply involve comparing clauses or consist in arguing to prove a hypothesis that has been formulated in advance – then they are aware of and they prove the great value of the experience of Roman law. The experience of comparative law extends the experience of Roman law, verifies it and points to the dead-end alleys into which one can be led if the precepts of Roman law are slavishly followed. Common efforts are of much greater practical use: deliberating about Roman law while always having the comparative context in mind; analyzing comparative law taking Roman law into account. Therefore I pay attention to the context of comparative law when I talk about the Roman law of succession. A serious problem lies in the fact that both specialists in Roman law and comparative law specialists find it difficult to raise the consciousness of specialists in contemporary private law, namely civil law dogmatists. Inasmuch as they like to look for support in other legal orders, and are thus open to the comparative perspective, they are reluctant to pay heed to historical arguments. It is difficult to hold this against them if those arguments are sometimes badly formulated or presented. After all, historical argumentation is concerned with the usefulness of legal experience and not about telling old tales or adopting old legal solutions.

J.Linderski, Legibus praefecti mittebantur (Mommsen and Festus 262. 5, 13 L.), Historia 28, 1979, 247-250 = Roman Questions (Stuttgart 1995) + addenda 642. Contrary to the opinion of Brunt and Sherwin-White both in line 5 and 13 Mommsen interpreted ‘legibus’ as referring to Roman comitial laws and not to municipal statutes.

T D I H S L E H 0 F E A A I W S 0 N Sy Ma r i o A Thesis submitted for the Degree of Doctor of Laws August, 1975. R. B o n e 1 1 o CONTENTS ====s=========== CHA..PTER I DISHERISON IN ROIW\N LAW CHA..PTER II A COMPARATIVE STUDY 23 CHA..PTER III (a) DISHERISON A.ND UNINORTHINESS (b) FORFEITURE OF THE RIGHT TO THE LEGITIM OR RESERVED PORTION, AND A GENERAL NOTION OF THE RIGHT TO LEGITIM 37 40 CHA..PTER IV GROUNDS FOR DISINHERITING DESCENDANTS 45 CHAPTER V DISHERISON OF ASCENDANTS 75 CHl\PTER VI OISHERISON OF THE SURVIVING SPOUSE 80 CHAPTER VII CONDITIONS FOR VALIDITY, EFFECTS AND REVOCATION OF A DISINHERITANCE CLAUSE 8? CHl\PTER VIII MERITS AND DEMERITS OF THE LAW OF DISHERISON 1 109 BIBLIOGAA.PHY 123 LIST OF CASES 126 -------- CHAPTER ONE: "DISHERIEON IN ROMAN LAW" To understand better our law of disherison it is essential to examine its devlopm~t in Roman law; besid~ this part of the law is of the greatest interest because of the praetor's intervention and because of the legal fictions that were evolved to protect persons disinherited or passed over. We find that in ancient Greece when the testator had male children he could not dispose of his property by will; but a law expressly laid down that a man who had legitimate sons could make a will which would become valid if they died while still minors (Harrison, A.R.W.; "The Law of Athens", P. 152). Yet this notwithstanding it seems that the father could disinherit a child, so long as such disherison was founded on some injur)I the child had been guilty of towards the father, on the child's prodigality or on some serious violation of the child's duties towards his father (Meursio, Themis, attic., 1, c. 2; Bunsen, De Jure haered. athen.; Sam. Patit. Leg. attic., p. 5?6). Themistocles was in fact disinherited by his father for his being a prodigal and for his uncontrolled way of life (Corn. Nip., Temist.,1). ** Early Roman Law. The will was it was already known ~ecognisd ~o in Roman law from a very early date; the Twelve Tables. From the time of the law of Solon (594 B.C.) which is reputed to have influenced the formulation of the XII Tables, testamentary dispositions were known under Attic Law. Though th3 idea was of Greek origin, in being introduced into Roman Law it took on a Roman garb. Troplong and 63rafini are of the opinion that under early Roman law the testator coulj disinherit his "sui heredes" as he wished, even without reason. The position in early Roman law is obscure. Ka- ser says that persons could be deprived of their expectancy of future heirship be certain ~ts "inter vivas": sons could be 'paid offt by emancipatio, children could be given into another family by adoption, daughters could be given into marriage with "conventio in manum" (Kaser, Max; "Roman Private Law," 65, II, 1b) • The rule under the Twelve Tables was: "Dicat testator, et erit - 2 - lex"; "Uti legassit paterfamilias super pecunia tutelare suae rei, ita jus esto." What did these words mean? According to Jolowicz, in the beginning there were two kinds of will, one made "comitiis calatis", the other "in procinctu". The part played by the people in the comitial will was to ratify by their votes the will made by the testator. This is what Jolowicz says:- "A will generally means an interference with the legal rights of a man's family, or gens, to his property after death and it seems natural enough that such an interference should first"of all have been' allowed only if sanctioned by the sovereign people itself in a sort of Act of Parliament, just as was an adrogation, where voting certainly took place." (Jolowitz; "Historical Intr. to R.L., P. 126). If so, the testator would not have been at liberty to dispose of his property as he wished, as some control would have been exercised by the people, and the testator would not have been able to disinherit at will. Many scholars, though, such as Labeo, ho:d that the people were mere witnesses. It could also be that the function of the people was originally legislative but later that of just witnessing. into de~nrat Or it could also be that the XII Tables dis- pens1;3 the testator from the necessity of securing the people's consent to mere particular gifts (legacies), while leaving him still bound to obtain such consent if he wished someone to succeed him as "her1;3s" other than his natural "heres". According to Lenel in the comitial will the testator had no powe~ to make an heir (See also Kaser, M.; op. cit., 67, I, 2b). Bon- fante and Maine, on the other hand, are of the opinion that the appointment of an heir was an integral part of the orig~nal will. Jolowicz concludes by saying that the riddle is unsolved, but prefers the view that the will for the Romans was to appoint a universal successor, when no natural descendant to ,ucceed existed (Jolowicz; op. cit., P. 134). In spite of what has been said the law of the XII Tables gave the paterfamilias, in practice, an unlimited power of disposing of all his property as he desired. The Twelve Tables gave testators a complete power of bequeathing legacies, the effect of which enabled the testator to dispose of everything by way of legacies, provided - 3 that the res 11 sui" were instituted incf'.itl!"t:us" ·l::c hm1R nCJth:i (See Zulueta, F.; 11 hGirs. P~ ~'.:"!S onss:i.hlr-i f'or -blio Hho- ng more than the empty title of 11 heres 11 The Institutes of Gaius", P. 87, and Buckland,W. W.; "A Manual of Roman Private Law"). **Remedies against exhaustion of property by bequeathing legacies. Excessive legacies could lead to the refusal of the inheritance and resulting intestacy. Attempts to remedy this inconvenience were provided by the "Lex Furia Testamentaria", the "Lex Voconia" and the "Lex Falcidia 11 • The 11 Lex Furia" (c. 204 s.c.) enacted that except in the case of blood relations no legatee could accept a legacy of more than 1,000 asses on penalty of paying four times the excess. But ates- tator could still exhaust his inheritance by leaving a large number of legacies. The "Lex Voconia" (168 B.C.) enacted that no legatee could receive more than the heir; number of legacies (1). but again it did not limit the The "Lex Falcidia" laid down that the heir had to receive at least one-fourth of the whole estate (quarta Trebellianica or falcidia); if the legacies exceeded three-fourths of the estate they were cut down "pro rata". soldiers' wills. This law did not apply to Furthermore, Justinian did not allow the benefit of this law to an instituted heir who claimed "spatium deliberandi" (2). **Power of disinheriting linked with 11 patria potestas". It should be noted from the very outset that this power of disinheriting is intimately linked with that of "patria potestas". It was one of the important adjuncts of "Patria potestas" and one important means l of ~he (1) The only restriction of substance introduced by the "Lex Voconia" is that which forbade the institution of women heirs by persons rated in the highest, that is wealthiest, class of the census: Gai. II, 274. Jolowicz, op. cit. says the scope of the statute was perhaps originally wider; see Buckland, 290, n.10. (2) The testator could set a time limit within which the heir must accept: it directed the heir to make "cretio" or 'formal acceptance'. This would have been insignificant in classical law, for if he did not 11 cern 11 there was nothing to prevent 'informal acceptance•. Sa it was reinforced by such words as "si non ita creveris, exheres esto" (G. 2. 165; Ulp. 22. 27). The disherison in such an event negatived the institution altogether (Buckland, W.W., "A Textbook of Roman Law", P. 313). - 4 - of preventing or punishing the faults of children. power might have been unlimited: Initially such "Liceat eos exheredare quos et oc- cidere licebet" (Paulus, L.11, D. de lib. et post., 28,2). Further- more, the children's rights, it might have been thought, were sufficiently protected by the laws of nature and the powerful "mores" of Roman society and did not need the law's protection. The presumption "a priori" was that natural affection, love and reason would prevail. But as abuses must have resulted, and as the power of the paterfamilias started being curbed, so too the power of disinheriting started being controlled. 11 Patria potestas" became more a means of safe- guarding the children's rights. **Institution of heir and Roman wills. In the Empire, Gaius writes that 11 testamenti vim ex institu- tions heredis accipiunt, et ob id velut caput et fundamentum totius testamenti heredis institutio". The most important function of a will was the nomination of an heirj the distribution of the estate in accordance with the will was only of secondary importance. A person, though, could not be properly disinherited by codicil (Inst. 2. 25, De Codicill., 2). The probability of dying without an heir and the consequences and possibility of the extinction of the family unit were of the utmost concern. A will might contain other provi- sions besides the institution of an heir, such as legacies, exheredatio, datio tutoris, etc., but such dispositions were of secondary importance to the "heredis institutio 11 • no "heredis institutio" were invalidi Accordingly, will? which had the "institutio" had to be the first provision of a will and provisions appearing before it were disregarded. Trajan (97 - 117 A.O.), is said to have allowed a will to begin with an "exheredatio". **Form of disherison. Certain persons in the Classical period had to be instituted heirs or expressly disinherited: aut exheredandi". "Sui heredes aut instituendi sunt To start with, by civil law a son "in potestate" had to be either instituted or disinherited in express terms, referring specifically to the son, that is "nominatim". The dishEJrison - 5 - "Ex heres esto". The proper form was: esto" (Be my son Titius disinherited). mean "by name"; "Titius filius meus exheres "Nominatim" did not always what was necessary was some clear identifying and un- equivocal description. In fact when the testator had only one son it not necessary to mention him by name, but the formula, "Filius meus exheres esto" was sufficient (Buckland, W.Wo; "A Textbook of Roman Law", P. 322). If a son in power was neither instituted nor properly disin- herited, the whole will was void "iure civili" (irritum) (G. 2.123.127), and intestate succession took place. This occurred even when the son died before the testator, but after the making of the will. The Sabi- nians and Proculians held conflicting views on this matter. The Procu- lains maintained that the will was valid, on the ground that the omission of the son did not render the will void "ab initia", but the will was invalidated if the son survived. The Sabinians, on the contrary, held that this rendered the will void "ab initia". eventually prevailed. This latter doctrine So that when a testator failed to institute his "sui" as heirs, or to disinherit them, the will was either completely void or modified, as we shall presently see, in favour of the "sui" wham the testator had passed over in silence (praeterire). Other descendants in power, who would be his "sui heredes" upon his death, had to be likewise instituted or disinherited, but in this case, a general clause of disherison sufficed, without the necessity of mentioning them specifically by name: (Be all the rest disinherited). "Ceteri omnes exheres sunto" This applied to daughters and to grandchildren who owing to the death or emancipation of their father (provided that they were born or at least conceived before the father's emancipation) were potentially "sui heredes" of the testator. If they were passed over in silence without being instituted or disinherited, the will was nevertheless considered valid, but they took a rateable share (G. 2.124. 128) in competition with the "sui heredes" actually instituted in the will; "scriptis heredibus in partem adcrescunt". They acquired half of the inheritance if the person instituted was an "extraneus" to the family; a category. an emancipated son was included under such Grandsons in power would take a son's share between them - 6 - as representing the share which would have been due to their deceased or emancipated father. **Postumi. "Postumi sui", that is "sui" who were "iam concepti" at the same time when the will was made and were born later, had to be instituted or disinherited. If the testator failed to institute or to disinherit them, the will was void whatever the sex of the "postumi"; "adgatione postumi rumpitur testamentum". At one time the testator would have found it impossible to provide against them by anticipatory institution or disherison: unborn persons could not be insti- tuted or disinherited because they were "incertae personae" (Buckland, IJJ.W., op. cit., P. 323). This difficulty was gradually overcome partly by jurisprudence and partly by legislation. Male postumi had to be disinherited "nominatim", whereas it was enough to disinherit females by the general clause provided a legacy was left to them so that it would not appear that they had been simply overlooked (Lex Junia Velleia, A.D.26?; Ga 2.130,131,132). "Nominatim" here does not mean by name, but in express terms. The formula would be, "If any son be hereafter born to me, be he disinherited". It should be noted that such a disherison of postumi could not be motivated by a just reason; how could the yet unborn child be guilty of any offence against the parent? Justinian explains (Inst. Bk.II, Title III) that under the general description of "posthumous" were included descendants who took the place of a "suus heres". If a person had in his power, for example, a son and a grandson or grand-daughter by that son, as the son was in the first degree of descent, he alone had the position of a "suus heres" though the grandchildren \/I/ere in the same power. But if the son died or otherwise went out of his father's power in his father's lifetime, his children would then take his place and would be "sui heredes" just as if they had been newly born into the family. In Gaius• time it was possible to institute or disinherit in advance any person who became a "suus" after the will, except those who became so by adoption, or "conventio in rnanum" or, until a relaxation by Hadrian, by "erroris causae probatio". - 7 Just as it was essential to institute or disinherit a son specially to prevent the will being void "ab initio", so it was recommendable to institute or to disinherit grandchildren by a son, so that if the son died in the testator's lifetime, the will would not be broken (ruptum). A person thus promoted by succession to the rank of "suus heres" was termed as a "quasi-postumus" by the commentators (3). **When did this formality of express disherison originate? The age of the requirement that "sui" must be instituted or disinherited cannot be easily ascertained. Some scholars retain it had a very old origin. Cicero discusses a case where a soldier was mistakenly reported killed; the father changed his will and instituted an heir, passing over his son who was presumed dead. Upon the son's return, after his father's death, he brought a "legis actio" before the centumviral court (Cicero, de orat., I.38.175). The question at civil law arose: Could a son be "exheres" of his father's property when the father had neither instituted him heir nor "e>:heredem scripsisset nominatim"? This may perhaps be taken to imply that there might have been a general clause of disherison, and what was to be decided was whether the son was disinherited under it or not. It may be that at the beginning of the first century B.C. (the 11 De Ora.tore" is set in 91 B.C.) it was not settled that a "filius" had to be disinherited 11 nominatim" • Justinian (C. 6 .28 .4 .2. ) tells us that in the old law "filii 11 and others were disinherited "inter ceteros" and that the centumviri introduced the distinction. Cicero seems to take it as a matter beyond dispute in law that a "testamentum" was "ruptum" by the birth of a "filius" after it had been made (4). Yet it was al- ready possible, according to Cicero (de inv•m. 2 .42. 122) to institute a "filius" born after the will was made. And this is quite obvious as this would have been the normal thing to do, disherison being an exceptional remedy. (3) (4) For the various kinds of "postumi" see Girard, P.F., 11 Manuale Elementare di Diritto Romano", Page 869, note 3. De orat. 1.57.241; pro Caecina 25.72 (The "pro Caecina" was written in 69 B.C., the "de orators" completed in 55 B.C., but the dialogue is set in 91 B.C.). - 8 ·- The earlier history of the rule seems to lack texts, as we have seen. The position, as far as we can tell, at the beginning of the last century of the Republic seems to have been that a will was invalidated by the advent of a new "suus", but this consequence could be avoidPd. **Extension of 'formal' restrictions by Praetor. After having inquired into the formal limitations to disinheriting introduced by civil law, we shall now see how the preator extended the protection to all descendants whom he admitted to intestate succession in the class "unde liberi 11 • By civil law emancipated children did not need to be instituted or disinherited because they were not "sui heredes" and under the "jus civile" they could not claim their father's inheritance. But the praetor started requiring all children of either sex who were not instituted to be disinherited. Males were to be disinherited "nominatim", females "inter ce- teros". This meant, in practice that the praetor disregarded eman- cipation and placed emancipated sons and their issue on the same level of "sui heredes". If the testator failed to institute or to di- sinherit them, the praetor gave them "bonorum possessio contra tabulas" (possession of goods against the will; see also "Lex Junia Velleia"), according to the portions of "bonorum possessio unde liberi". This kind of "bonorum possessio" only originated at the end of the Republic and in founding/the praetor was certainly not spired by any memory of the prehistoric house-community. in-/~ His in- tention was to preserve a part of the inheritance for the testator's children. His Edict marks the second stage in the process of evolu- tion, for the praetor at the end of the republic had considerably less scruple in pursuing his aim than his predecessors in earlier times. By praetorian Edict, succession could be bestowed by the praetor where he considered the claimant to be entitled thereto by the rules of equity. did not have It should the be realized that the power in the strict sense of the praetor word - 9 - to make an heir, but he could grant "bonorum possessio" not granting upon the successful claimant the title of heir by so doing; yet he could enforce such "bonorum possessio" by the "interdictum quorum bonorum", the "hereditatis petitio possessoria" and other remedies. This would make the bonorum possessor praetorian (bonitoiy) owner of the goods comprised in the estate with the right to become civil law owner in due time by "usucapion". "Bonorum possessio contra tabulas" was only granted if the person entitled to it applied for it within a certain time. **Effect of "bonorum possessio contra tabulas". The whole effect was to upset the will, not technically, but practically, and to admit to the succession not only the descendant who applied for the relief, but also all others entitled to succeed "ab intestato" who had not been duly disinherited. The "bonorum pos- sessio" was always "cum re" in this case (See Schultz, "Classical Roman Law", P. 217, 378). The succession according to the praetor's rules was in such a case an interesting combination of testamentary succession•amd intestate succession, providing an exception to the general Roman law rule "nemo pro parte testatus pro parte intestatus decedere potest". This praetorian rule was most cleverly devised (See Schultz, op. cit., P. 272, 470). But if the disherison was formulated correctly, then the praetor could not grant "bonorum possessio": child was regarded as non-existent, a disinherited Although "bonorum possessio contra tabulas" was granted according to the portions of the "bonorum possessio ab intestato", it sometimes led to a different result from that reached by "bonorum possessio unde liberi"; the recipient of a "bo- norum possessio contra tabulas" at times received more than he would have obtained by "bonorum possessio ab inte.::itato", for the simple reason that he participated in the share of the disinherited child. The praetor made no distinction between males and females, but the Emperor Antoninus Pius reverted to the rule of the "jus civile" by providing that women were in no case to take more by "bonorum possessio contra tabulas" than they would have taken by right of accrual at civil law. Now what was the position as regards adoptive children? Adoptive - 10 - children so long as they were in the power of their adoptive father, were in the very same position as children born in marriage, and therefore had to be either instituted or disinherited as if they were the true natural children of the adoptive father. But if they happened to be emancipated by their adoptive father they were not considered as his children either 11 jure civile" or by the praetor's Edict. On the other hand, so long as they were in the adoptive family they were strangGrs to their natural parents, so that there was no need for the parent to institute or to disinherit them, for the adopted children were strangers. But when emancipated by their adoptive father, they then acquired in relation to their natural father the same position as if they had been emancipated by him and could therefore obtain 11 bo- norum possessio contra tabulas" if they were passed over in silence (See Hunter, "Roman Law", P. 778,4; This was all altered by Justinian). **Mother's Will. Mothers and maternal grandparents were not required to institute or to disinherit their childreno Neither the civil law nor the praetor's Edict, required a mother or maternal ascendant to disinherit or institute a son or daughter. A woman had no 11 liberi" in the sense used by lawyers in this context, so that "bonorum possessio contra tabulas matris" was out of the question. **Why all these 'formal' restrictions? These formal restrictions guaranteed that parents should not pass over their children in silence and if they wished to disinherit them, they were to use the appropriate form. otherwise, the children who were "praeteritr 1 could avail themselves of the remedies above mentioned, thus frustrating the testator's intentions. These rules did not prevent a father from disinheriting h;s children, so long as the prescribed form was observed. These interesting and intricate rules call for some explanation. Unfortunately, we do not know much of their origin, for even the remarks made by Justinian do not show us for certain that originally an "exheredatio inter ceteros 0 was sufficient for the disherison of sons as of daughters and grandchildren. The rules may not date back to - 11 - the Twelve Tables, but they appear to be old and presumably took some time to develop. Why was so great importance attached to the father's institution or disherison of his "sui"? Why not let him choose the in- termediate and perhaps milder way of passing them over in silence? **Explanations. Various theories have been put forward. the explanation given by Bartolus. The prevalent one is Originally, it is said, the sui were considered to be in some way or other co-partners in the family property together with their father. The paterfamilias may originally have been the administrator of the family property rather than the absolute owner; his "testamentum" in fact had to be approved by the "pon- tifices" and sanctioned by the "comitia calata" (See De Zulueta, F., "The Institutes of Gaius", Pt. II, P. 96; all that certain). as we have seen, this is not On his death they were considered as possessing administrative powers over that property. For this reason the father was bound to expropriate them by a special act, that is by disinheriting them expressly by "exheredatio" or implicitly by instituting them to a smaller portion than they would have taken upon an intestate succession. But according to Schultz (Shcultz, F.; op. cit., P.268,4€4), the idea of a family property had long disappeared when these rules evolved. A second interesting objection is that if "exheredatio" were meant to be an expropriation, its appropriate place would have been at the very beginning of the will in order to make the way clear for institutions and not after the "heredis intitutio". Actually, however, as we have seen, an "exheredatio" had to follow the institution of heir. The praetor also required the express institution or disherison of "liberi 11, and such family property. 11 liberi 11 cannot be said to have been co-owners of the So that examining pre-his:oric laws turns out to be futile in this respect. Another widely accepted theory holds that a father was bound to institute or to disinherit his "sui" as a sign of his respect towards them: theory. this is called the "honos institutionis vel exheredationis" It would be an affront to the "sui" if they were passed over in silence as if they did not exist at all. The objection raised against - 12 this theory is that the "sui" in reality might not have been so much interested in such individual attention. In fact, it is most probable that a son would have preferred to be passed over in silence to be spared the experience of being labelled by an "exheredatio nominatim facta". An interesting theory is put forward by Schultz (op. cit., P. 269, 466). According to him, the Republican and Classical lawyers never had the idea that the father was bound to institute or disinherit his "sui". The maxim "sui heredes instituendi sunt vel exhere- dandi" was framed by the post-classical author of the Epitome Ulpiani (22.14) who had before him Gai. 2.123, which runs differently. Accordingly, succession against the will was not meant to punish the father for having failed to fulfill an obligation. The Republican lawyers, though, had the understandable desire to reserve the inheritance for the "sui", but did not dare to attack the father's will openly and for this reason did not interfere when his intention was clear. The Republican lawyers only ventured to interfere where the will could be given a different interpretation and not otherwise. If the will was silent with regard to "sui", they then dared to intervene. In fact this requirement of express disherison seems to have been one of the first checks on the testator's liberty of disposing of his property and the safeguarding of a quota of the inheritance to near relatives: this formal limitation or restriction had a psychological reason behind ito It may not be amiss to note that the requisite of 11 nominatim" disherison was also meant to prevent mistakes, as where the father had omitted to mention his son thinking him to be dead, when in fact he was alive (See Perozzi, s.; "Istituzioni di Diritto Romano", Volume II, Page 602 ,foot ·note). When a son was passed over (which seemed to the old lawyers to be the most important case) they annulled the will altogether; other cases they were satisfied to make a compromise. in Seen from this new angle, the rules concerning "praeteritio" are capable of greater appreciation. They represent a stage in the development of - 13 - the law of disherison which eventually led to a further step, namely that of the 11 querela inofficiosi testamenti". **A most significant •material' restriction. From the end of the Republic, or from the beginning of the Empire, a new principle started rearing its head. It started being felt that a testator could not be left at liberty to dispose capriciously of all his property, and that certain near relatives were to be provided for. Such a right after all, has its foundation on na- tural law. If the testator without reasonable justification failed in this duty, the will could be attacked and invalidated by a procedure known as the "querela (or doglianza) inofficiosi testamenti" (plaint of the unduteous will). This constituted the most important "mate- rial" restriction to the power of disinheriting. It was an action, or better, a remedy, which in classical law was brought by a "denuntiatio" or "libelli datio" against an instituted heir who had entered on the inheritance (Perozzi, op. cit., P. 615). classical querela is meagre. Knowledge of the What we know of it is basically from the texts of Justinian, which, however, are probably heavily interpolated: Complete certainty cannot be obtained from the available sources. As regards its history, it certainly did not originate earlier than the end of the Republic and perhaps considerably later (Schultz, op. cit., P. 275, 4??). ed institution. At Trajan's age it existed as an establish- Apparently, it is of customary origin, the "Centum- viri11 being its founders. The starting point was the "testamentum inof f iciosum" in which a testator offended against his 11 offici1..m pietatis" by not providing for his nearest relatives, especially his children; will which public opinion esteemed as unduteous. in other words a The law punished this offence against morality by granting to the offended relatives a remedy (querela) against the instituted heirs which took the form of a "fictitious" allegation that the testator was insane and that the will was therefore invalid and ought to be set aside. It had the - 14 nature of an "actio vindictam spirans" as a result of the injury suffered by the testator's behaviour. It was not really alleged that the testator was insane, for in such a case there would have been an invalid will. The allegation was that the testator had made his will validly, but in violation of the claims of natural affection, rendering the will unreasonable in the circumstances (5). If the child's exclusion was justified, the father's will could not be altered (6). **Who could bring the querela? As regards the group of relatives who were entitled to bring a querela, it is quite certain that the remedy was available to the testator's descendants in Classical law, not only to the 11 liberi" in the sense employed by the lawyers with respect to the Edict. The "plene adoptatus" alone (unless emancipated before the testator's (under Justinian) deach) could impeach his adoptive father's will (Cod. 8.48.10pr.): the "minus plene adoptatus" retained the right against his natural father. A mother's will, it seems, could also be impugned by her descendants. It is however doubtful whether in Classical times the as- cendants of the testator and his brother and sisters were already protected by this remedy. The post-classical "Sententiae Pauli" knew only a "querela" of the "liberi" and began the title "De inofficiosi querela" (4.5) with the definition: "Inofficiosum dicitur testamen- tum, quad frustra liberis exheredatis non ex officio pietatis videtur esse conscriptum". Before Justinian a "querela" could be brought by descendants and ascendants; brothers and sisters could bring the "querela" only if "turpes personae" had been preferred to them. The law seems to have been settled in this sense as early as Ulpian (Dig. s.2.1.). ts) (6) As-regards institution of a child under a condition whicr. the son could not satisfY, see Buckland, op. cit., P. 298. A father could provide for the case in which the "suus heres" survived him, and so inherited, but died under puberty, and thus unable to make a will. The father might in his will substitute a person to take the inheritance of the child in that event, in effect making a will for the child. In the Empire "substitutio pupillaris" covered the child's whole estate, and was allowed even though the child was disinherited? Besides avoidance of the child's intestacy, it had a practical purpose. If a father had disinherited for misconduct, and an instituted son survived him, and the latter died impubes, the property might, but for this provision, go to that disinherited "suus". A "substitutio vulgaris" was generally added. For further details see Buckland, op. cit., Page 302. 15 - The term "turpes personae" (base persons) is not exactly defined. It includes persons technically infamous (infames) and persons of bad character or low social standing. Roman law did not grant a legitim to brothers and sisters and other collaterals (Pothier, Pand.,t.1, p.190, De inoff. testam.), and this was the only exception to the principle. If the brother insti- tuted an infamous person, then his brother was considered as having a right to a portion of the inheritance. But there existed further- more four cases where the brother who had been passed over in silence could still be excluded: firstly, the instituted heir could success- fully object on the ground that the claimant had been ungrateful; se- condly, if the instituted heir was an "heres necessarius 11 , a slave; thirdly, if the plaintiff was himself an infamous person as the instituted heir; and lastly, if he had already received by a diffe- rent title his due (See Troplong, Vol. VIII, XLVIII, 19). Such a claim was founded on the grave insult that the family was made to suffer, when the brother was passed over in silence. If there were no children, or none who impeached the will successfully, the "querela" was available to ascendants, and in the same way, ultimately, to collaterals. It had to be brought within fi- ve years from the heir's entering upon the inheritance and if the claimant was unsuccessful, he lost any liberality made in his favour under the will. Justinian ordained that it passed to the heirs even if it was not yet instituted. A person who recognized the will's validity (by accepting some benefit or compromising his claim) lost his right of action. **Plaintiff's demand. The person bringing the "querela"had to show that he had received less than a fair share of the testator's estate. He need not have been instituted heir, but he 'should have been provided for by institution, legacy or gift 11 mortis causa". The amount to which he was entitled was initially left to the discretion of the Court, but was later fixed by statute to one-fourth of what he would have taken upon intestacy, This was the proportion of the estate which by the - 16 Lex Falcidia the heir was allowed to retain against legatees. nection with the "querela" it was known as the 11 In con- portio legibus debita" or the "legitima portio" • was to prove injustice. *!~Plaintf The "querela" was excluded where the testator had sufficient reasons for leaving nothing or less than the "quarta" to his relatives. Vin- nius says, "Prospicere lex voluit liberis, nee distinxit inter sexum, aut gratum, inter suos, aut emancipatos, eosve qui nunquam in potestate fuerunt, inter natos aut nascituros, modo in suo ordine nemo eos gradu superet. Quad his a lege tribuitur, est, ut aut instituantur aut justs exheredentur" (Partit. juris, 1, 35). It was for the Court to decide "ex arbitrio boni viri" whether the reason given by the testator in the will amounted to a just ground of disherison or notj drawn up. a fixed list of such grounds had not yet been The plaintiff, therefore, had to show that he had been disinherited without a good reason (7). *l(·An action of last resort. The "querela", moreover, was an action of last resort (ultimum adjutorium) and the plaintiff could therefore resort to it only when he had no other means of attacking the will. Thus a "suus heres" pass- ed over could not bring it since he could very well avail himself of the civil la.w remedy of "petitio hereditatis" (8) and an emancipated son, who had similarly been passed over, could not resort to it, for he could obtain "bonorum possessio contra tabulas". But if either was disinherited without just cause, they could resort to the "querela". It was an action of last resort because it was injurious to the reputation of the deceased. (7) (a) A descendant who converted to the Christian religion could not be disinherited by his parents. Criminal liability still attached to any offence he committed against the parents, but the "quarta falcidia" had to be left to him, so that it may appear that he had gained this in honour of the chosen religion: See Pharr, C. "The Theodosian Code", 16.8.28. So too a girl could not be disinherited simply because she preferredto marry rather than enter religious life, when the parents wanted the latter: See Pharr, C., op. cit., N. Maj. 6. 1. Some authors hold that the "querela" originated from the 11 petitio hereditatis". In this regard, see Girard, P.F., op. cit,, P. 874, note 4. See also Buckland, op. cit., P. 327. - 17 **Effect of "Querela". If the "querela" was successf'ul, it upset the will and produc- ed an intestacy, but the will was not necessarily wholly annulled. If there were two or more instituted heirs, to upset the will completely it was necessary to challenge it as regards both or all the instituted heirs, as the case might be. If the complainant attacked one only or was successful vis-a-vis only one of them, the will was upset "pro tanto 11 • This formed another exception to the rule "ne- mo pro parte testatus, pro parte intestatus decedere potest". Con- sequently, the plaintiff acquired his full intestate portion, not solely the "quarta", the will being cancelled only in so far as this was necessary to reach such share. In this respect the "que- rela' followed "bonorum possessio contra tabulas"• The same conse- quence followed if two persons were entitled "pa:ri passu" to attack the will, and only one did so or did so successfully. **Reasons for fictitious allegation of insanity. Something must be said about the fictitious allegation of the testator's insanity, In the first and second century A.O., as at the end of the Republic, the Cantumviral Court was the arena for the virtuosi of rhetoric. Schultz says (op. cit., P. 277, 485) that these people were accustomed to exaggerate, distort and confuse the issue and called things by incorrect names. When pleading for the plaintiff in a "querela" they most probably described an unduteous will as a will made by a testator who was of unsound m:i.nd (furioso factum), imitating Greek models. colore insaniae" or "non sanae mentis". This was called "agere Such phrases could have impressed the non-legal members of the Court, so that the orators must have used them freely: "Rhetori concessum est sententiis uti falsis, audibus, versutis, subdolis, captiosis, si veri modo similes sint et possint movendos hominum animos qualicumque astu iurepere" ( Gellius 1 •6.) • such rhetoric. The lawyers would have been uninfluenced by They knew too well the difference between a "testa- mentum inofficiosum" and a "testamentum a furioso factum" (which would have been null "ab initio"). Yet in post-classical times - 18 - this rhetoric crept into classical writings; in a few passages of the Digest, but not in the "Sententiae Pauli" or in the "Codex Theodosianus", we meet the "color insaniae", but they are obviously interpolated (Schultz, F.j op. cit., Page 278). If the "querela" was successful, the will was upset and the father, it was argued, who had disposed of his estate without providing for his children, did not enjoy sufficient reason. The tes- tator was considered as having forgotten the duties imposed by natural law and that some kind of ailment analogous, but not equivalent, to insanity, had affected him. Ulpian says, that it must be realized that suits of undutiful wills were frequent for everybody, parents and children, could argue what constituted undutifulness. **Connection between the querela and the rules on prateritio. It should be realized that an ideological connection exists between the querela and the rules on praeteritio: "Under the •querela', it is said, the testator was bound to provide h~s nearest relatives with a substantial share of his inheritance (Materielles Noterbrecht); under the law of 'praeteritio' the testator had to render them a purely formal tribute, viz. the 1 honos institutionis vel exheredationis' (Formelles Noterbrecht). Thus one arrived at an obligation of the testator which defies all explanation. This distinction between 'Materielles' and 'Formelles Noterbrecht' is misleading and should be abandoned". (Schultz, F., op. cit., Page 264, 467). We have till now dealt with the succession "iure civili" upon "praeteritio" of the testator's "sui", "bonorum possessio contra tabulas" and the "querela inofficiosi testamenti". All three institutions bear the common aim of restricting the testator's ~re- dam of disposing of his property "causa mortis" and of protecting t h e rights of near relatives: the goal was the same, but the le- gal means in which it was attained were substantially different. The lawyers of the second and third centuries A.O. were reluctant to attempt the unification and simplification of the three into one. Even in Justinian's compilations, that is the Codex Iustinianus, Digest and Institutes, a unification was not seriously attempted and it was only Justinian's Novella 115 of A.O. 542 that at last attained this aim. - 19 - **Justinian's Reforms. Justinian maintained the praetorian system, but adde? the stricter requirement that ~ disherison was to be made in express terms or "nominatim" (Cod. 6.28 .4). He did not discriminate between sons and daughters and all descendants through males, between emancipated and unemancipated, born and postumi, and required them all to be instituted or disinherited individually. An exception existed with regard to a soldier's will, where the testator was considered to be in a privileged position: if a soldier on active service made a will and failed to disinherit his children (whether born or born afterwards) "nominatim", passing them over in silence, well knowing of their existence, impe:t:'iaLconstitutions provided that his silence was tantamount to an express disherison (Buckland, op. cit•, P.361). Previously to Justinian, the son could be considered as a simple creditor of the share to whish he was enti~ld, which the instituted heir was bound to satisfy (debitum bonorum subsidium). It is held that Justinian introduced the entirely new condition of requiring the persons entitled to the legitim, if descendants or ascGndants, to be instituted "heirs", not necessarily to the whole amount of the legitim. It was not enough that they received their portion by title of donation, legacy or fideicommissum, but it was necessary that they receive it, or a part of it,under the honourable title of heir; "Non habet legitimam nisi qui heres est" (9). In the case of an unjust disherison, the will was not wholly annulled; the institution of heir was annulled by the "querela nul- litatis", but other dispositions were to be fulfilled (Girard,op. cit., P. 920; Nov. 115, c.4.9). Textwriters disagree as to how the invalidation of the institution of .1eir was actually brought about (On the various opinions see Arndts-Serafini, Pandette, para. 599, note 1). Justinian made further changes introducing a certain degree (9) Nov. 12.3.15. But for a different interpretation see Oomat, Volume 8, Page 10, where he says he need not necessarily be instituted heir. See also Troplong, Vol. I, P. 256,744. But this view does not seem to be correct. Under Justinian the person entitled to the legitim had to have the title of heir. - 20 of uniformity and simplicity. He increased the children's right to legitim (10), wherefrom the rule, "quatuor vel infra natis dant iura triendem, quinque vel supra natis dant iura semissem". The "querela", also referred to after Justinian as the "Querela nullitatis ex nova jure•: could be instituted only if the person had received nothing at all. If something 1 however trivial, was left to him, the will could no longer be impeached by this remedy. The solu- tion in this case would have been the "actio ad supplendam legitimam", also referred to as the "actio expletoria", to reduce the share which went to the instituted heirs, leaving the will intact, till the legitim was satisfied, An implied arbitration clause was implicitly read in every will, says Justinian. Yet the person entitled to the legitim would have preferred the "querela" to the "actio ad supplendam legitimam", because the latter was of a personal nature and could not be exercised against third parties, like the 11 querela 11 , and moreover, by means of the "querela" the plaintiff could obtain more than the legitim (See Girard,P.F.; op. cit., P. 8?9; Nov. 115, c.3,14; c.4,9). The just grounds for disherison were finally set down by Novel 115, this being a further "material" restriction on the testator, as now it was not left any more in his discretion to decide what constituted a good ground; this also put a check on the Court. son had then to be proved in the 11 querela". Such rea- Initially it was the claimant who had to prove he had been unjustly disinherited. Under Justinian, the burden of proof was shifted onto the instituted heir; "nisi forsan probantur ingrati" (11). **Grounds of disherison under Justinian. Children could be disinherited by their parents for:1. 2. 3. 4. 5. 6. 7. (10) (11) Assaulting the parent; other serious and disgraceful injury; Accusing the parent of any crime, except treason; Associating with dabblers in witchcraft; Attempt on the parent's life by poisoning or otherwise; Adultery with the father's wife or concubine; Informing against a parent, and putting him to great costs; A.O. 536, Nov. 18.1. If the testator had disposed of his property or the greater part thereof, by donations "inter vivas" imperial constitutions provided the "querela inofficiosi donationis"to obtain the donations' reduction to satisfy the legitim. Nov. 115, c.3. Besides it is a general rule of law that no accusations ought to hold without their being proved. - 21 B. 9. 10. 11. 12. 13. 14, Refusing to become surety for a parent to procure his release from prison; Successfully frustrating an attempt of a parent to make a will, the parent afterwards being enabled to do so; Following the profession of comic actor or gladiator, except when the parent did so too; A daughter prostituting herslf~ or marrying a freedman without her parent's consent. But she was excused if a dowry and husband were not provided for her before she was twenty-five; Neglecting to take charge of an insane parent; Neglecting, although able, to redeem a parent from captivity; Heterodoxy of the child: orthodoxy is to be in communion with the Church, and to hold the faith as settled by the Councils of Nicaea, Constantinople, Ephesus, and Chalcedon. As regards this ground there is a noteworthy provisionin·the Code. If the parent is heretical, and the child orthodox, the latter is to have his legitim in all cases, notwithstanding any offence he may have committed against the parent. If he is free from offence, the child must get as much as he (or she) would have obtained if his parents had died intestate (c. 1,5,13). Parents could be disinherited by their children for:1. 2. 3. 4. 5. 6. 7. Accusing the child of any crime, except treason; Attempt on the child's life by poisoning or otherwise; Adultery with the child's wife or concubine; Frustrating the child's attempt to make a will, the child afterwards being enabled to do so; Neglecting to take care of an insane son or daughter; Neglecting, when able, to redeem a child from captivity; Heterodoxy of the parent. Brothers and sisters could be disinherited if they were guilty of an attempt on the testator's life, or of accusing the testator of a capital offence or because they attempted to deprive the testator of his property. /probably It is important to note that Justiniary'retained the so-called "bona mente disherison (or "non notae causa"), in which the disinherited person's share was transferred to his children. This kind of disherison was not meant as a punishment, but to favour the child and descendants. More about it will be said later (12 9 see P. 22). **The law of disherison after Roman Law. The law of disherison in the intermediate period between Roman law to this very day has had its foundat~s on that of Justinian. In Italy, the grounds for disherison were based on Roman law, as we shall see also later on; but not all grounds found in Roman law were ad- ~ mitted:"L'istituto della diseredazione per cause determinate dalla legge fu abbraciata anche dagli statuti municipali, che in generals la ammettevano appunto per quei medesimi motivi pei quali era ammessa dal diritto romano e dagli editti, senonche applicarono qua e cola' anche ai maschi il diritto di disere- 22 - darli quando avessero contrc:ttc.J rna.trimonio contra il divieto paterno" (Pertile, A.; "Storia del Oiritto Italiano", Vol. IV). Oomat says that though in Venice there was no express law laying down the existence of the "querela inofficiosi testamenti", yet there was no doubt of its existence; the burden of proof lay on the heir (See Oomat, Vol. VIII, P. 44). In France, the Roman law grounds for disinheriting, saving heterodoxy, were maintained. were exhaustive. Yet it was debated whether such grounds Could more serious grounds be included, as when the son attempted homicide on his mother-in-law, or failed to provide maintenance to his parents? (See Domat, op. cit., P. 28). Our present law of succession is substantially based on the principles of Roman law (See Harding, H.; Malta", P. 37). 11 History of Roman Law in Our law of disherison, as we shall see hereafter, is substantially based on the law of disherison as modified by Justinian. **** ** * (12j **** ** * That 11 bona mente' disherison was retained by Justinian is not all that certain. Many writers prefer not to give an opinion on this. In any case, the Court of Appeal in Genova in a judgment delivered on the 12th Junet 1861 holds thatit did not exist under Justina~ See Bettini, 1861; 2~ 2536. - 23 - CHAPTER II: 11 A COMPARATIVE 8TUDY" We shall now embark upon a comparative study of' the law of disherison as understood in other countries. But we shall deal with the law of disherison in Germany, Louisiana, Austria and Spain whilst analysing our own law of disherison, as their law in this respect resembles to a considerable degree our own law of disherison. It is first of all necessary to see what other laws understand by the term "disherison". Windscheid, to start wit~ defines disherison as an ex- press declaration that a certain person (whether a necessary heir or an "ab intestato" heir) is not to inherit. But some laws admit also of an implied disherison, such as Austrian law, as we shall see. POSITION IN THE UNITED KINGDOM There are two ways of restricting the testator's testamentary freedom. A legal system may make some overriding provision for rela- tives either on the basis of a fixed entitlement (as in our law), or in the discretion of the Court. This latter method is the one adopted in the United Kingdom. The "Family Provision Act", 1966, gives the Courts a discretion; to award maintenance; for specified and insufficiently provided for dependants; out of income. ~l The applicant must:a) prove that he has a "locus standi", that is, 1) that the deceased died domiciled in England; and, 2) that the applicant is a member of the class prescribed by s. 1 (1) of the Act, that is, i) a wife or husband; ii) a daughter who has not been married, or who is, by reason of some mental or physical disability, incapable of maintaining herself; iii) a son who has not attained the age of 21; or, iv) a son of any age who is, by reason of some mental or physical disability, incapable of maintaining himself. b) convince the Court that the will of the deceased, or the intestacy rules, or a combination of both does not make reasonable provision for the maintenance of the applicant (1). The whole matter as to whether disherison is possible or not in the U.K. is left to the Court to judge; yet as will be seen, the Court, in case it decides that the testator was unreasonable in disinheriting the dependants, is only empowered to grant maintenance. (1) The S. 27 of the Matrimonial Causes Act, 1965, enables a former surviving spouse whose marriage to the deceased has been terminated by a decree of divorce or nullity to make an application, providhe or she has not remarried. - 24 - English system is admittedly different from ours, but it is of the greatest juridical interest to see how the problem of providing nothing or less than a sufficient portion of the inheritance to near relatives is tackled in the U.K. and to see the different solutions that can be adopted to the problem of disherison. The wishes of the deceased are irrelevant, but the Court is empowered by S. 1 (7) to "have regard to" the deceased 1 s reasons for making the will which he made, or for not making any, or any other, provision for the applicant. Evidence of these reasons may be obtained from dated writings signed by the deceased or from the deceased's oral statements (Re Smallwood, Smallwood v. Martins Bank Ltd., (1951) Ch. 369). The statement may be in the will itself, and it is not presumed conclusively where a statement was made that it contained all the deceased 1 s reasons; other reasons are admissible. The Court is not obliged to accept the deceased's statement at face value, but may take into account the accuracy or otherwise of the statement. As a result, if the deceased leaves a statement which is inaccurate, the fact of the inaccuracy may in itself be indicative as to whether adequate provision was made for the applicant (1968; 1 All E.R. 451). An example occurred in Re Clarke, Clarke v. Roberts (Re Borthwick, Borthwick v. Beauvais, (1949) Ch. 395). The testator, fortynine years old, who was living with his mother, married a schoolteacher aged thirtysix. After the marriage the parties lived with the testator's mother for seven months, but the mother made his wife feel unwanted. In his will he left her £1,000, saying, "I hereby declare that the reason why I have not made further provision in this my will for (my wife) is that having before our marriage after due consideration agreed the matrimonial home should be in the home of my muther who is a partial invalid she has seen fit to leave me and set up a home by herself". Plow- man, J., however, found that the wife went to live in the mother's house as a temporary measure intended to last only till such time as his mother got accustomed to the fact that her f ortynins year old son had married and that all this was not meant to be permanent. According to the judge this would have amounted to constructive desertion of the - 25 - husband had the case been a matrimonial dispute, and he rejected the reason given in the will, awarding one half of the income of the estate for the rest of her life, or till remarriage. The Court may make an order in favour of the applicant if it is of the opinion that the existing disposition of the decaased's estate is not such as to make reasonable provision for the maintenance of the applicant (Inheritance (Family Provision) Act, 1938, S. 1(1)). The section does not say whether one should adopt a subjective or objective test of reasonableness. The fact that account is to be taken of the deceased 1 s reasons suggests, but is not conclusive, that a subjective test ought to be applied. a subjective test: The prevalent approach is to adopt the Court has placed itself in the position of the deceased at the time of his death, and has gone into the reasonableness of the disposition at that time. On this basis, both the facts known to the deceased, and the circumstances which were reasonably foreseeable by him were relevant. In Re Howell, Howell v. Lloyds Bank Ltd. (1953) 2 All E.R. 604 a married man with children left in his will all his property to his second wife. After his death, she tecame gravely ill, and could not look after the children, who therefore went to live with his first wife. As the deceased could not have reasonably fore- seen his second wife's illness, the provision of his will could not be changed. The relevant time to consider circumstances is at the moment of death. In Re Franks, Franks v. Franks (1948) Ch. 62, a woman left a small portion of her estate to her second husband and the substantial part to her son by her first marriage. second husband, and died two days later. She then had a child by her Even though it was not prac- ticable in the circumstances for her to chEtnge her will to make provision for her new child, Wynn Parry, J., held that the child could successfully make an application. A recent decision has obscured matters to some extent. In Re Goodwin, Goodwin v. Goodwin ( 1969) ·1 Ch. 283 the testator in his will left his residuary estate to his second wife. He calculated that this ought to amount to about £9,000, but in fact after payment of estate - 26 - duty, it amounted to just £1,500. Of that £1,000 was represented by an unsecured interest free loan made by the testator to his wife's son by a previous marriage. After the testator's death the son became se- riously ill, and stopped making repayments in respect of the loan, and it was doubtful whether he would be able to resume making pa.yments. Megarry,J., held that even if there had been no uncertainty as to the £1,000, the provision would still have been unreasonable. He also took into consideration the supervening uncertainty of the debt, and made an order in favour of the widow. The decision is consonant with principle on the basis that if the provision was unreasonable as at the date of death, then in deciding what order should be.mad~ the Court may take into account subsequent events. It appears, though, that the judge did not say that if the provision was reasonable as at the death of the testator, then the Court would not have had jurisdiction to make an order. The judge in consider- ing whether a subjective test ought to be applied said:"The question is simply whether the will or the disposition has made reasonable provision, and not whether it was unreasonable on the part of the deceased to have made no provision or no larger provision for the dependant. A testator may have acted entirely reasonably; he may have taken skilled advice on the drafting of his will, intending to make a fully reasonable provision; and yet through some blunder of the draftsman (perhaps as to the incidence of estate duty) or by some change of circumstance unknown to the testator in his lifetime, the provision in fact made may have been wholly unreasonable. Conversely, the testator may have acted wholly unreasonably in deciding what provision to insert in the will, but by some happy accident, such as the lapse of a share of residue which then passed to the widow as on intestacy, the provision in fact made may be entirely reasonable. In my judgment the question is not subjective but objective. It is not whether the testator stands convicted of unreasonableness, but whether the provision in fact made is unreasonable." An application must show that the testator had a "moral obligation" to support the dependant. So in Andrews, Andrews v. Smorfitt (1955) 3 All EoRo 248 the daughter was unsuccessful as she was living with a man as his "wife" and therefore the testator ceased having a moral duty towards her sustenance. In certain circumstances a dependant will be owed a moral obligation where he or she takes care of the deceased. In Re Blanch, Blanch v. Hornhold (1967) 2 All E.R. 468, a wife aged seventy one, looked after her ill husband, and notwithstanding that he did not pro- - 27 - vide for her because of his irrational jealousy, Buckley, J., thought fit to grant her benefit from the estate. The Court may also take into account the testator's moral obligation to those whom he has benefitted by his will. Thus a testator may make provision for an illegitimate child (Re Joslin, Joslin v. Murch, (1941) Ch. 200) and his moral obligation to such person will be recognized. This is so even though such persons may not be entitl- ed to make an application. Furthermore sub-section 1(b) requires the Court to have regard to the conduct of the applicant in relation to the deceased, and otherwise. This is taken into account so that one may see whether the applicant owing to his behaviour ought to receive any benefit from the deceased, and subsidiarily, what the quantum of such benefit should be. Some doubt exists as to whether a testator may make no or little provision for dependants who are being cared for under the National Health Service. In Re Watkins, Watkins v. Watkins (1953) 2 All E.R. 1113, the testator left an estate of £23,000. His daughter was a mental in-patient and he had during his lifetime allowed her £250 p.a. Now, in his will, he left her just £?2. Roxburgh, J., refused an application. Yet in Sivyer v. Sivyer (1967) 3 All E.R. 429, Pennycuick, J., bestowed half of the estate to a girl who was in the care of the local authority. It has nonetheless been decided that where the app- licant is in receipt of a Ministry of Social Security allowance or pension, and the only result of an allowance would be to reduce such allowance, the testator may in such a case make no provision (Re E., E. v. E., (1966) 2 All E.R. 44). It should be noted that the Court's object is to provide for the maintenance of the applicant. There is no suggestion that the ob- ject of the provision is to enable the Court to give legacies where it thinks appropriate. Lump sum payments may only be made for the main- tenance of the applicant. Where an estate is small an application may still be made and a lump sum may be ordered instead of, or in addition to periodic payments. Maintenance does not mean mere subsis- - 28 - tence. The appropriate standard is to be considered in the light of previous maintenance of the applicant. Wynn Parry, J., said, "What would be a reasonable provision for the widow of, for instance, a farm labourer would, in ordinary circumstances, be unreasonable provision for the widow of a wealthy man"(Re Inns, Inns v. Wallace, (194?) Ch. 576). The will may be unfortunate, but if it is not unreasonable, the Court is generally reluctant to interfere. The Court can make an order up to the total income of the estate, and may impose conditions or restriction on the recipient (Re Pointer, Pointer and Shonfield v. Edwards (1941) Ch. 60). DISHERISDN UNDER FRENCH LAW And now we turn to French law. We do not find the institute of disherison in the Code Napoleon, nor in the present French Civil Code, which admits only of the institute of unworthiness (Ss ?2? et seq.):"Cette faculte (of disherison), qui existait dans 1 1 Ancien Droit, comme un apanage de la magistrature domestique du pere de famille, ayant ete supprimee per le Droit Revolutionnare (by a law of the ?th March, 1?93), n•a pas ete retablie par le Code civil" (Saum, H., "La Transmission de la Succession Testamentaire", 116; see also Merlin, Voce Oiseredazione, P. 822/42). Yet we still find the notion of "exheredatio" in French doctrine, which makes very interesting study, because such notion does not quite tally with our notion of disherison. First of all, it must be pointed out that under French law, any testamentary liberality must consist of a legacy, which may be by universal or by particular title. It is inconceivable, according to Baudry-Lacantinerie (Vol. I, 2260) to think of a legacy which does not contain a designation of the thing bequeathed or the person to whom it is bequeathed. So that, for example, one cannot CG~sider as a legacy the dis- position in which the testator declares that it is his intention to disinherit all the successors called by law (not being those having the inalienable right to a reserved portion), including the State, without indicating any person who will substitute them. In fact, such a disposition does not contain the two essential requisites necessary for the validity of the legacy; there is no indication - 29 - of the person in favour of whom it is made. If such a disposition were to be held valid, its effect would be to render the inheritance "extra cdmmercium", because nobody would own it:"L'exheredation pure et simple que n 1 accompagne expressament ou implicitement aucune institution ne saurait etre qu inoperante et tel sera le cas d'une exclusion de tous les heritiers sans exception° y compris 1 1 Etat (A. Colin, note D 1902). It is important to realize that the nullity of such a disposition is enforced only if no implicit institution can be derived therefrom. Let us imagine, for instance, that the testator has limited himself to disinheriting his intestate heirs (other than those having a right to a reserved place. ~ortin) without substituting anyone in their Such a disposition would expressly indicate only the testa- tor's desire that his property is not to go to these excluded "ab intestato" heirs. Yet in such a case, it may be reasonably presumed that the testator intended to indicate implicitly the heirs next in grade to those disinherited to inherit:or even "Exclure, c'est instituer". "Exclure, c•est disposer" So that these heirs next in rank may be allowed to benefit of the implicit institution made in their favour. Jurisprudence seems to take this point of view (See especial- ly Cass., 15 April, 1885, s. s. 86.1.453 and Paris, 13 December, 189?, 02 ' 2 • 3? ) • Implied institutions resulting from such disinheritance are not accompanied by any express disposition of the property in favour of perscns different from the disinherited heirs. But the contrary is also possible. For example, the testator may dis:i.nherit the nearest heirs and at the same time institute a universal heir: if the latter accepts the disposition in his favour then no difficulty arises. But if this disposition lapses, is the disherison valid and does it still take effect as an implicit institution in favour of the other heirs who are next in rank (and in their absence in favour of the State) who have not been disinherited? - 30 - The French Court answered in the affirmative in a judgment given on the 1oth February, 1869 (Cass., s., 69.1.153, D., 69.1.175); but the Court of Lyons decided in the negative in a judgment delivered on the 29th July, 1885 (s., 87.2.101, D., 86.2.229). But it is possible to reconcile these two conflicting judgments. The problem which we are seeking to solve depends on the interpretation to be given to the testator's disposition. What was the testator's intention? Did he want the disherison to be subordinate to the validity of the universal legacy, so that if this failed to take effect, the disherison would be annulled? Or did he, on the contrary, intend such disposition to hold good even if the legacy failed to have effect? This seems to be the only problem that presents itself and it is up to the judge to examine the disposition, and resolve the problem according to the circumstances and the reasons for itsbeing made. Disherison may alsd be implied or indirect. The testator may merely indicate a universal heir, not mentioning others, who would be entitled by law to succeed "ab intestato": "Instituer, c•est exhereder" and also "Exclure, c'est disposer" (Ripert et Boulanger, To 3, no. 2164). Disherison in French law may also take the form of a penal clause in a will. The testator, desiring his dispositions to be fulfilled, may declare that a person who does not comply with the will is to have his share reduced to the reserved portion or to be disinherited if he is not a person in whose favour the law grants a legitim. Such penal clauses containing an implicit and conditional legacy are valid (See cases quoted in Planiol et Ripert, Tome V, P. 746, note 1). be unjust; The refusal to comply with the testator's will must if it is manifestly just, the legacy may be attacked in appropriate cases. Such penal c.lauses are to be interpreted restric- tively (2). (2) Disherison as understood in Belgian law is similar to the French position; See DekkGrs, A., "Precis de Droit civil belge", Vol. III, 1070 and 1185. - 31 - DISHERISON IN ITALIAN LAW The position in Italy is analogous to that in France. The in- stitute of disherison was done away with in the Italian Civil Cade of 1865, following the French example:"Non esiste nel Cadice il titolo della 'Diseredazione•, che pero' troviamo nella generalita' dei Codici italiani. Il motivo, che si adduce, per cioi giustificare, e questo, che cioe' si elevarono a cause di indegnita• le principali cause della diseredazione" (Arnulfo, quoted in Vitali, Vol. V., P.18). It is relevant to note that besides unworthiness the Italian Penal Code provides in Section 541 that a person who has been convicted of certain offences (i.e., violenza carnale, atti di libidine vialenti, atti di libidine diversi dalla cdngiunzione carnale ••• ) against the testator "importa la perdita del diritto agli alimenti e dei diritti successori (s. 461 c.c.) verso la persona offesa". Notwithstanding all this, the concept of disherison is not unknown in Italian law, but it does not apply to persons who are entitled to the "legitim". If the testator's family consists solely of three nephews "ex fratre", X, Y and Z, and he makes a will leaving as his universal heirs X and Y, his will is perfectly valid. But according to the pre- vailing opinion his will would not be valid if he were to disinherit Zand nothing more, because there would be no "will", as we shall see. It is true that pretermission and disherison are not equivalent, in as much as the person passed over will succeed "ex legs" if all the instituted heirs die or become unworthy, without any person to represent them or renounce to the inheritance. But the testator may still succeed in his aim by instituting X and Y, and in case of their non-acceptance, the State. So that the testator's intention of di- sinheriting a relative should not be forn.ulated in a negative manner, but in a positive form by indicating who is to receive: this will have the same effect as a negative testamentary disposition. The disposing of one's property implies a positive order, the bestowing of property, and not just:- "I want nothing to go to Z." A recent elaborate and reasoned judgment of the Supreme Court (Cass., 20, June, 1967, n. 1458 1 in Faro pad., 1967, I, c. 943) will furnish - 32 - information on disherison as understood in Italian law and of the difficulties faced by the Courts:"Il contenuto del testamento e' costituito dalla disposizione patrimoniale attributiva di tutti o parte dei beni del testators," and "non=9=r==ammissibile e non costituisce valido ~§Qt9 ••• la scheda con la quale,-§91~=snzr cuna-aisposizione, si escluda un detenninafo-ereae-legittimo (non legittimario) della successions, diseredandolo" (judgment above mentioned, c. 950), thereby rejecting the rule "Exclure, c 1 est instituer" or "Exclure, c•est disposer" (3). But it may be argued that the person who solely declares that it is his intention to disinherit a particular intestate heir, intends to benefit other relatives called by law, whom he does not mention, but who are certainly at the back of his mind. But many Italian writers retain that even if this were to be accepted, problems would arise, especially if the intestate heirs are of different ranks. If three brothers survive, together with two uncles, and the "de cujus" has disinherited one of his brothers, it is uncertain, they say, who is to benefit from such disherison. In disinheriting his brother has the testator implicitly instituted as heirs only his two brothers, or together with them, also the two uncles? It is suggested that the disinherited person should be excluded from succeeding, and the suecession devolves upon the heirs who have not been disinherited according to law. But even so this would sanction the testator's intention of disinheriting and the whole matter may amount ta an arbitrary presumption of the testator's intentions. The problem lies in whether we can detect "sia in modo diretto ed esplicito, sia in modo indiretto ed implicito ••• la inequivoca volontR 1 del testators, oltre che di diseredare un determinato successibile, di attribuire le proprie sostanze ad un determinato altro" (judgment above mentioned). Yet the Court of Appeal in Florence (9th Sept., 1954 in Fora pad., 1955, I, 48a in Giur. it. 1955, I, 2, 750) recognized the vali- (3) In agreement:- Ferri, L., "Se debba riconascersi efficacia ad una valonte. 1 testamentaria di diseredaziane" in Fora pad., 1955, I, 47ss.; Trib. s. Maria c.v., 25 May, 1960 in Temi Nap., 1960, I, 621; contra: Trabucchi, "esclusione testamentaria degli eredi e diritto di rappresentazione" in Giur. it., 1955, I, 2, 749ss. See also Rivista di Diritto Civils: Anno XI-1965, pt, P. 504 by C.A. Jemolo; 1969, Pt. I, by P. Rescigno; 19?0, P. 42 by v. Trabucchi; and Enciclapedia del Diritto, XIII, Oiser. by And. Torrente. - 33 dity of a negative disposition and intestate succession was allowed to regulate the succession among the persons who had not been disinherited (See Santoro-Passarelli, 11 Vocazione legals e vocazione .testamentaria 11 in "Riv. dir. civ. 11 , 1942, 200 in note). It is true that the testamentary heir need not have been bestowed this title of heir formally by the testator, but it is always necessary that there be an "heres scriptus", in the sense that the determination of the universal heir cannot be made indirectly, by referring to external sources to the will. Another question that arises is whether disherison implies the intention to disinherit those persons who may succeed the disinherited person by right of representation, which could be made applicable in such cases by analogy (See "Enciclopedia del Diritto," XIII, Giuffre on "Diseredazione 11 ) . Andrea Torrents answers in the affirmative; the testator wants to exclude those who may be entitled 11 if jure rapp- resentationis", then he may easily do so - but such intention has to result clearly from the will. The principles to be revised according to Bin (Bin, Marino; "La Diseredazione", 1966) are two:- the tendency in this matter of holding that legal succession (i.e. intestate) is somehow predominant to the testator's will (volonta'); and the widespread opinion that a will "debba avere natura necessariamente attributiva di beni". In his book he reverses these two principles with satisfactory success. "E 1 discriminazione irragionevole", he says (op. cit., P. 218), "e arbitraria" to consider as "anti-sociale ••• un testamento contenente 1 diseredazione 1 , e non invece uno contenente 'preterizione' accompagnata da istituzione di eredi estranei al gruppo parentale del de cuius". Bin's conclusion is, "che ogni disposizione patrirr..Jniale di ultima volonta 1 , anche se non prevista 1 nominatim 1 dalla legge, e'idonea a costituire valido contenuto del testamento in conformita• al primo comma dell' articolo 587 c.c., purche' risponda all' indicato requisito di liceita• e meritevolezza di tutela" (Bin, M., op. cit., P. 254). DISHERISON IN THE u.s.s.R. We shall now deal with disherison in Russia and very superficially with disherison in Hungury, Roumania and Yugoslavia. law has its own special driteria as to who are forced heirs: Soviet " ... - 34 - the testator may g~ deprive his children under age and the other heirs unable to work of the share in the estate which they would obtain 'ab intestato• 11 (s. 422, para. 2 c.c. as amended in 1945) (4). The provision of S. 422 para. 2 CC may lead to udd results, especially in combination with the Court practice in determining the criteria of inability to work. If the testator disinherits his child and dies one day before the latter has come of age, the disherison is void; but if he dies two days later it is valid. He may disinherit his son who is at the beginning of his University studies which he took up with his father 1 s consent or encouragement, because he is not 11 unable to work", even though it will be years before he starts working. But the testator may not reduce the share of his mother who, though unable to work or presumedly so, as she is over fifty five years, is well-to-do or looked after by a well-to-do husband; the testator may disinherit his wife who is fifty four, but he may be incapable of disinheriting his sister who is fifty six. Perhaps these are extreme cases, but they go to show that the Soviet concept of an "inofficiosum testamentum 11 is very different from ours. Another striking characteristic of the Soviet law in this matter is the absence of specified causes of disherison. If neither of the two alternative requisites that bestow the inalienable right to succeed (that is minority or inability to work of "izhdiventsy", meaning dependants living with the testator) is present then the testator may disinherit the heir without reason. If they are present he may not, even if the best of reasons exist • This, at least, seems to be the position from the letter of the law. From the wording of S. 422 CC ("cannot be deprived of the portion") it seems that the "heres necessarius", if disinherited, will obtain his legal share as if no will existed; in what wcy is uncertain. (4) Initially the founders of communism were adverse to succession. Decree of 1918 abolished succession. Art. 10 of the 2nd Constitution of the U.S.S.R., though, of 1936 promised "legal protection to the succession rights concerning the individual property of the citizen". A law cf 1945 broadened the category of eligible heirs. - 35 - If an heir is disinherited 11 jus accrescendi" applies, except when the testator in his will has appointed a substitute heir; the disinherited person's share devolves in equal portions to heirs intestate of the same group, and if there are no such heirs, to those of the next group, "unless in the case of a will the testator has provided that his entire estate shall devolve upon the heirs appointed by him". Grandchildren are also 11 heredes necessarii" when they stand in the place of their parent. HUNGARIAN LAW. The Hungarian Civil Code empowers the testator, without or in addition to the appointment of an heir, to exclude one or more of his intestate heirs either "expressis verbis" or by disposing of his estate by will in favour of other persons. An "heres necessarius" may be excluded in respect of his portion which is in excess of his compulsory share and no reason need be given for such exclusion; of the compul·· sory portion he may be deprived only by disherison.(5). ROUMANIAl't 1..AVJ. The institute of disherison exists also in the 1945 legislation of Roumania, where the testator may exclude a "forced heir" of his campulsory portion by an express declaration in his will. be general or partial; Disherison may if it is general, succession is considered vacated and the estate vests in the State. If there is more than one intestate heir and the testator appoints only one as heir and this latter refuses, the remaining heir or heirs will receive the bequest if the purpose of the will was to favour the instituted heir. But if its intended scope was to disinherit the remaining heir or heirs, the estate devolves upon the StatQ. YUGOSLAVIA The Federal Inh3rita.1~8 Law specifies two categories of" of 1955 of Yugoslavia first PI'.l\! .t1egeu I re ..... _ (5) all The first category is that r::ff unqualified privileged heirs composed of descendants, and their descendants. o.f' ~Dtes The second category is formed of brothers and We shall deal with Hungarian law again when dealing with our own law, comparing or noting the grounds that are common. - 36 - sisters and other descendants. These latter are qualified privileged heirs only if affected by some form of permanent incapacity for work and if they have no means of sustenance of their own. Both categories lose their privilege in case of unworthiness. The privileged heirs may be deprived of their rights if they treated the testator with cruelty or contempt or were convicted of some premeditated criminal offence against the testator, the testator's spouse, his descendants or parents; if they engaged in an idle and disrepu- table manner of life or were found guilty of offences aimed at undermining the people's authority, the socialist order, the independence of the country or the interests of national defence (Section 47). The disinheriting of privileged heirs may be full or only partial, but in either case it must be formulated in such a manner as not to leave any reasonable doubt as to what was the true intention of the testator (6). **** ** * )()()()(ll)()(J()(llll)( ****)()()()()()( )()()()()()()()( )()()()()(l( **** ** **** ** * * (6) Bulgaria does not allow disherison as it follows to a considerable extent the system of the "Code Civil". So too in China disherison may only be pronounced by the Court as an additional punishment for crimes committed against the testator. The position is a bit obscure in China. - 37 - £HAF!T£JL,lll: a) DISHERISON AND UNWORTHINESS Disherison and unworthiness to inherit are two separate institutes of the law, which are intimately linked, but which are, nevertheless to be kept distinct. Unworthiness in Roman law was not equivalent to incapacity of receiving under a will, for the unworthy person could only receive but he could not retain the property. Initially the property went to the "Fiscus", because the State considered itself as being the victim of the offence suffered. Later, however, the heir, whether by law or un- der a will, was allowed to take the property in preference to the State. The list of causes that rendered a person unworthy of inherit- ing in early Roman law was quite formidable:females having a nefarious reputation; heretics; apostates; persons accused of treason, and with them their children; saving their right to the legitim; per- sons condemned to death; an heir who violated the testator's will, etc. Unworthiness has in modern law as its consequence the incapacity of receiving by will or 11 ab intestato", based on the presumed intentim of the "decujus" that the unworthy heir or legatee should forfeit the bequests left to him or to which he would be entitled under the law in the absence of a will. Moreover public policy cannot allow a person who has grieviously offended the testator to enjoy the property of the "decujus". It may be said that it is "~Q g~Q ~gMQ" by the law (See Sala, "Success. testate e intestate, para. degli effetti dell 1 indegnita•",P.101 to 104; VI, P. 44, n. 33). Pacifici-Mazzoni, "Istituzioni", t. Infact the testator may always forgive the unworthy person and reinstate him in his previous position. Unworthiness is not, strictly speaking, a form of incapacity (nor is disherison). The testator may "rehabilitate" the offender, whilst if he were incapable of succeeding the testator would have been powerless (1). And the offending party is onlyu.nable to succeed the offended party1 so that such inability is only relative, not as incapacity to succeed in the strict sense of the word. He is perfectly capable of (s. 2343) and Swiss Code (s. 540). It is not admitted in the Code Napoleon: Pacifici Mazzoni, "Istituzioni di Diritto Civils Italiano", Vol. VI, Pt. I, (1) This admitted also in the Berman Civil Code Page 82. - 38 ~ succeeding to other persons' property whether under a will or by law (2). The unworthy person "potest capers sed non retinere". Such ac- quisition is subject to annulment when it is proved that his title is defective and therefore "non retinere posse". rate ''ipso iure" or "officio iudicis"? Does the exclusion ape- Doctrine and jurisprudence point to the latter view, that is that it has to be judicially pronounced (See Pacifici-Maezoni, P. 83, and authors quoted therein. See also Ferri, La, "Successioni in generals," Pages 144 and 153). The judge- ment is of a declarative nature and "l'indegnita• operi nel diritto materials come fatto che impedisce la delazione 1• (Baudry-Lacantinerie et Wahl, "Success:honi 11 , I, P. 214) and has a retroactive effect. Pre- valerit opinion says that till such judgment- he is an "apparent" heir. Tradition is in favour of the opinion that the action should not be subject to prescription. Pothier affirms that prescription may cancel the liability to punishment for the offence, but does not remove the punishment of unworthiness (See Ferri, op. cit., P. 143). ~Unworthies is declared by the law as a punishment and extends also to forfeiture of the legitim. The offences giving rise to unwor- thiness are offences against public order and therefore of a public nature; yet the person instituting the action to exclude the unworthy successor must have a legal interest for doing so: stitute such action. not anyone may in- Oisherison, on the other hand, has to be express- ly declared by the testator in a will. The reason for this is that the causes that may entail disherison are more of a private nature affecting the internal relations in the family and are more of a domestic nature. The general causes giving rise to unworthiness may be divided into three groups:~ (i) serious physical offences; (ii) offences against the testator's honour exposing him to detrimental consequences; offences against the testator's liberty of disposing by will. (iii) The position as regards unworthiness and disherison is somewhat comparable to that in Criminal law where some offences are liable to prosecution (2) Infact Article 463 of the present Italian Civil Code says, "E' dalla successions come indegno ••• " and not as it was previously, "Sano incapaci di succedere ••• " §.§Q1!:!§Q - 39 - "ex officio" by the Police, while others. n.f'fac-ting more the private lives of the parties concerned, are only liable to prosecution upon private complaint of the injured party ("Querela di parte"). Moreover, Section 643 dictates that, "Any person who has incurred any of the disqualifications stated in the last preceding section (viz. unworthiness) may receive by will if the testator has rehabilitated him by a subsequent will or by any other public deed." ~n the case of dis- herison we shall later discuss whether the disinherited person may be forgiven and reinstated in his rights as a result of reconciliation; if reconciliation is admitted as revoking the disherison, then a disherison could be said to be revoked without the necessity of a subsequent will or a public deed. As regards the connection between the right to disinherit and the right to rehabilitate the person who has incurred into unworthiness, L. Ferri points out:"Storicamente, almena noi pensiamo, la riabilitazione rappresenta un residua di L'n piu' ampio potere spettante al testators, che aveva la sua precipua manifestazione nella facolta' di diseredare ••• Oggi la diseredazione e' scomparsa (dal Cadice Civile Italiano) lasciando un suo ultimo vestigio nel potere di riabilitare concesso al de cuius ••• L 1 indegnita 1 nel diritto ramano era istituto tipicamente pubblica e nel suo fondamento: la repressione e la prevenzione dell'illecito; e nel modo come operava: l'ereptio dei 'bona' da parte del fisco; mentre la diseredazione trovava il suo fondamento e la sua giustificazione nell'esercizio di una potesta' domestica o famigliare, la quale era in origine potesta' di colpire, can la diseredazione, o di perdonare il colpevole, ed e' rimasta solo come potesta• di perdonare (riabilitare)" (Ferri, L., op. cit., P. 166). Furthermore, a person unworthy to receive under a will or "ab intestato" may only receive if he has been pardoned in the way specified. But a person who has committed an act for which he "could" have been disinherited needs no reinstatement, as the silence of the testator is a sufficient pardon. Disherison applies only to the persons who have the right to the legitim or "riservata portio 11 • Unworthiness on the other hand, app- lies to any person in whose favour a testamentary disposition had been made prior to his committing one of the offences by which he became unworthy or who is called by law to succeed to the deceased 1 s estate in the absence of a will. That is, unworthiness hits all successors. It should be noted that some of the grounds giving rise to un- - 40 - worthiness may be common or similar to those on which a disherison may be founded (See, for instance, Sections 853 - 855 of the Spanish Civil Code). FORFEITURE OF THE RIGHT TD T:HE LEGITIM DR RESERVED PORTION, AND A GENERAL NOTION OF THE RIGHT TO LEGITIM CHAPTER II: b) Any person, says the law, may dispose by will or donation of the whole of his estate in favour of any person capable of receiving under a will or by donation (Section 633). Where, however, the testator has descendants, ascendants, a spouse or illegitimate children, he can only dispose of such portion of his estate as remains after deducting the share which is due to the said persons under the provisions of Section III, subtitle I of Title III of the Civil Code. Where on the other hand, the testator has none of the above persons, then he is completely at liberty to dispose of his estate as he desires. But if such persons exist, then in such circumstance, the estate is divided into two portions. One, the non-disposable portion, is reserved to the abovementioned persons, and devolves on them by operation of the law and cannot be disposed of by the testator. The other, the disposable portion, may be disposed of freely by the testator. When the testator has persons who are closely related to him by consanguinity or affinity, his duty towards them is a positive and not a hypothetical one, founded on social and domestic relationship. This duty is, therefore, raised to a legal obligation by the law (See Caruana-Ganado Notes on Civil Law, P. 995). the law in force entitled to a 11 The persons under legitima" or "riservata portio" are the children, or other descendants, as stated in Sections 653 and 654, the illegitimate children who have been acknowledged as provided in Section 858 and the surviving spouse; in the absence of any such persons, the ascendants become entitled to the legitim (Section 656 as amended). The surviving spouse and illegitimate children, it is held by some, are entitled to a "riservata portio" which is a safeguarded share of a different nature from the "legitima portio". The testator has no power to interfere with the non-disposable - 41 portion of' his estate. But: thon cer.1:1.c•n OGO "'"'IVS. t:l-=t 11 oosides the grounds on which a person may become unworthy to inherit (thereby forfeiting his right to the legitim), the persons entitled by law to a legitima portio may be deprived thereof by a specific declaration of the testator on any of the grounds specified in this Code, to be stated in the will". This is the so-called right to disinherit persons entitled by law to a "legitima portio". The law itself empowers the testator to alter a principle which is essentially of public policy. The Italian rendering of the term is redazionsiis also met with in older texts. dazioni". 11 diseredazione 11 , though "di- The Maltese term is "dizere- The English counterpart is "disherison","disinherison" or also "disinheritance". The universal term is "exheredatio". But is this nomenclature correct? When the succession consists of the entire estate of the deceased, it is called an inheritance {eredita 1) (Section 622), and the estate includes the "universum jus quod defunctum habuit" {Fr. 24, Dig. "Ds verborum significations"). The heir succeeds to the rights and duties of the "de cuius" "en bloc", in so far as such rights and obligations survive the death of the de cuius and the heir is therefore liable for all the debts of the deceased. inheritance is an ideal but not a real unity; tity: The it is an incorporeal en- "hereditas etiam sino ullo corpora iuris intellectum habet" (Lex 50 D, "De petitions hereditatis"). There may in fact be an inheritance composed of only liabilities with no assets: "hereditatis appellatio si- ne dubio etiam damnosam hereditatem continet; iuris enim nomen est si- cut bonorum possessio" (Fr. 219, "De verborum significations"). Sec- tion 347 recognizes that an inheritance is a moral entity, where actions for claiming an inheritance are considered to be immovables by reason of the object to which they refer. It is an incorporeal immovable by operation of the law, independently of the property of which it is composed (See Caruana-Ganado Notes on Civil law, P. 958). After giving some explanation as to the significance of the words "heir" and "inheritance", we must now see whether the persons who are by law entitled to a "legitima portio" acquire such portion by title of heir or otherwise. - 42 In "Not. Achille Micallef nom. ed altri v. PoL Cost. Fenech nom." (Vol. XXI, Pt. I, P. 196; See also Vol. XXVIII, pt. II, P. 251 which stat- ed the same principle) it was said that:"La legittima e' una porzione dei beni del defunto, e non gia' una porzione dell'eredita•, e quindi la personalita• giuridica del defunto vi~ne per via di continuazione, trasfusa nell'erede di lui, e non gia' nel legittimario, nemmeno per una parts corrispondente alla misura della legittima". So too in "Carmel Farrugia ne. et. v. Concetta Mintoff et." (Vol. XXXIII, pt. I, P. 4?2) the Court of Appeal held that, "Infatti 1-legittimariu mhux eredi, kontra s-sistema prevalenti fil-kodicijiet kontinentali, li jsegwu s-sistema tad-dritt komuni prevalenti, imma mill-banda 1-ohra lanqas huwa kreditur ta' 1-eredita'"• In "Giuseppa Sammut v. Grazia Refalo et. 11 (Vol. XXXVIII, pt. I. P. 551) the Court declared that, "Id-debitur tal-legittima huwa 1-eredi; u ghalhekk f'kawza fejn tigi mitluba 1-likwidazzjoni u 1-assenjazzjoni tal-legittima hemm bzonn li jigi verifikat min huma l·-eredi 11 • So too, in "Antonio Micallef v. Giuseppina Grech" (Vol. 29, pt. II, P. 1048) it was declared that, "Il-legittimariu mhux eredi; u ghalhekk qabel ma jitlob illegittima huwa ma ghandux bzonn jiddikjara li jaccetta 1-eredita '". (See also Vol. 29, pt. II, Page 25). To sum up the Court of Appeal in a recent judgment, "Concetta Vella et. versus Giuseppe Bugeja et." said that, "Fid-dritt taghna, kuntrariament ghall-legislazzjonijiet 1ohrajn fejn il-legittima hi deskritta bhala kwota ta' 1-eredita' jinghad espressament li 1-legittima hi porzjoni tal-beni talmejjet moghtija mil-ligi lid-dixxendenti ••• Billi fis-sistema tal-ligi taghna il-legittima m'hiex kwota ta' eredita• il-legittimariu kif ga' kemm il-darba deciz (See also besides tha above, Vol. XX, Pt. I, P. 363 and Vol. XLIII, pt. II, P. 834) m1 huwiex eredi, u ma jikkontinwax il-pussess tal-beni tal-mejjet. Illegittima bhala 'pars bonorum' hi dovuta in natura, u bhala porzjoni tal-beni dovuta in natura m'hiex merament oggett ta' kreditu tal-legittimariu kontra 1-eredi (See Vol. XXXIII, pt. I, P. 472 - 4?5), " non consists in eredito" kif jinghad fin-Nati talProfessur Giovanni Caruana. In tant fis-sentenza riportata filVolum XXVII, I, 451 intqal ukoll illi •tra la quota di cui s'e' disposto col testamento e la quota indisponibile non vi e' comunione"; u in generali jidher li fil-giurisprudenza taghna ilfigura tal-legittimariu ipprofilat ruhha bhala figura •a se'; la hu semplici kreditur u lanqas hu veru komproprietarju" (See also "Mifsud v. Mizzi", 14th December, 1973, where it was said that " ••• bejn il-legittimariu u 1-eredi jippersisti stat ta' komunjoni" of a special nature). All these cases go to prove that under our law the person entitled to the legitim does not succeed as heir; though he may be appointed heir in a will. Under Italian law the legitim is a quota or portion of 43 - the inheritance, though even under Italian law the person entitled to the legitim may claim his portion "in natura 11 • Therefore the terms 11 disherison" and "dizeredazioni 11 used in our law are not, strictly speaking, correct. heir of his inheritance". The term means "depriving ~n But as a matter of fact, the person entitl- ed to the legitim does not receive as heir. It is in the testator's discretion as to whom he appoints as heir: Il testatore ha il diritto di riservare per il legittimario una determinata specie di beni anziche una quota di tutti i singoli suoi beni. Il testators puo' percio lasciare per testamento tutti i beni mobili o immobili, sino alla concorrenza della disponibile, e riservare pel legittimario solo beni mobili o immobili 11 (Vol. XXVII, pt. I, P. 451). 11 But the testator need not appoint him heir, so that he may be said to have been "disinherited" without there even being a just cause. But this is not what our law means by "disherison". Disherison in our law means "Depriving the person having the right to a legitima or riservata portio from his right to the legitim or reserved portion," so that he gets neither a "pars haereditatis" nor a "pars bonorum": in fact he loses all succession rights and is completely disregarded; though in computing the legitim he is not disregarded, as we shall see later. The Code de Rohan said that those entitled to the legitim had to be instituted heirs:Tuttocio' che fara lafciato a quei, a' quali e' dovuta la legittima, fi dovra avere per lafciato in fua contemplazione e canto; e fi dovra avere per efreffo il titolo d 1 iftituzione" Libra Quarto, Capo Primo: De' Testamenti, S. XXVIIo 11 Customary law, followed by the Code Napoleon, held that only God could make an heir; "solus Deus haeredem facere potest, non homo" (Glanville, De Legibus Angliae, VII 1). legacies, but not make an heir; The testator could wellbequeath he did not have the power of creating this person, who had to have his same blood, to represent him; to al- low him to create an heir would be to allow him to usurp a power that belonged only to God. But this idea, which Hegelianism in the nine- teenth century tried to resuscitate, has been discarded by our law; but the nomenclature of "disherison" has nonetheless remained. 11 As Judge W. Harding had said in Giovanni Bartolo versus Antonio - 44 - Bartolo et":"L-istitut tad-dizeredazioni fil-Kodici taghna gej midDritt Ruman, u sussegwentement mill-Kodici tar-Regna delle Due Sicilie li segwa anki d-Oritt Ruman", (Vol. 29, pt. II, P.880). But while the term "exheredatio" was certainly correct under Justinian•s law, its retention under our law is slightly misleading, as it does not mean what it implies. It is suggested, therefore, that a more suitable term might be adopted. Perhaps the word would be far better. 11 delegitimation" or "dislegittimazzjoni" But even then, such a term would not be comple- tely precise, for some are of the opinion that the right to legitim belongs only to descendants and ascendants; though the right of ascendants has been altered by recent amendments. The surviving spouse and 'illegitmate children have a right to a "riservata portio" which is not equivalent to the "legitima portio". In fact the rights of the latter persons do differ from the right to legitim. Perhaps the term 1 g~"£Q would be the most adaptable in the circumstances. **** ** * ){){X******* ******** ****** **** ** * **** ** * - 45 - CHAPTER IV: .......... ,....--a::..-· ....,......., GROUNDS FOR DISINHERITING DESCENDANTS • We will first see when the testator may disinherit his "descendants". Section 653 says, "The legitim due to legitimate children, or to children legitimated by a subsequent marriage, or to adoptive children shall be a third part of the property of the deceased, if such children are not more than four in number, or one half of such property, if they are five or more in number". Section 654 then says that the word "children" shall include the descendants of the persons mentioned in S. 653 in whatsoever degree they may stand; such descendants succeed to their father's share. The word "descendants" therefore clearly includes all the above mentioned. We shall mention illegitimate children later on. It should be noted that children or other descendants who have been disinherited are also taken into account for determining the number of children for regulating the legitim, whether they are succeeded to or not "jure rappresentationis 11 • In this way disherison cannot generally operate so as to enable the testator to increase the disposable portion (See Caruana-Ganado Notes on Civil law, Page 998). Section 650 then gives us the grounds on which a descendant may be disinherited: "Saving the provisions of Section 667 (dealing with disherison "bona mente"), the grounds on which a descendant may be disinherited are the following only:(a) if the descendant has without reason refused maintenance to the testator; (b) if, where the testator has become insane, the descendant has abandoned him without in any manner providing for his care; (c) if, where the descendant could release the testator from prison, he has failed to do so; (d) if the descendant has struck the testator, or has otherwise been guilty of cruelty towards him; (e) if the descendant has been guilty of grievious injury against the testator; (f) if, in the case of a dauqhter or other female descendant, she is a public prostitute without the connivance of the testator; (g) in any case in which the testator, by reason of the marriage of the descendant, shall have been under the provisions of Sub-title II of Title I of Book First of this Code declared free from the obligation of suppying maintenance to such descendant". It should be noted that these grounds specified by the law are exhaustive and cannot be extended to include other grounds, by analogy or interpretation, even if the ground sought to be made use of is of a - 46 - more serious nature than any of those specified in the laws A ground which does not fall under any of the above cannot avail the testator to disinherit his descendant. so Vol. 29, pt. II, P. 880). The law is quite clear about this (See alThe Civil Code of Louisiana includes an express provision saying, "There are no just causes for disinherison, but those expressly recognized by law, in the following article~ 1620). (Art. This principle applies also to the disherison of ascendants and the surviving spouse. Now let us deal with the above mentioned cases in- dividually. a) REFUSAL OF MAINTENANCE The first ground on which a descendant may be disinherited is when he has "without reason refused maintenance to the testator". This ground for disherison was included in the Cadice dells Due Sicilia (s. 849, 2) and the Codic::e per gli Stati di Sua Maesta' il ~ Re di Sardeg!J!:. (s. 738, 2). But it is not included in the Cadice Civils per gli stati di Parma, Piacenza e Guastalla. The Civil Code of Louisiana in Article 1621 (5) also includes as a just cause of disherIS'mi this first ground. Article 2333 (d) of the German Civil Code includes it too, as does the Spanish Civil Code in Section 853 (1). Hung,r_i~ law and Polish law allow disherison of the necessary heir if he has maliciously and obsti~aely failed to fulfill his duty to maintain the testator. The 8ustrian General Civil Code (Art. 768, 2) and Czechoslovakian law (s. 551 cc) say that a necessary heir may be disinherited if he or she has left the testator who was in distress without assistance. This ground could include this first, the second and the third grounds for disinheriting descendants found in our law. This last mentioned ground has its merits, but it may also be dangerous to include as a.ground for disherison because it may include a bit too much. Three requisites are required under our law. fusal of maintenance in the first place. There must be re- This must be without reason. Moreover, it is only the ascendant who has been refused maintenance who may disinherit the guilty descendant. self of such ground. No other ascendant may avail him- This last mentioned requisite applies to all the other grounds on which ascendants may disinherit descendants (1). It should be noted that the law has said "without reason 11 • Maltese text says "ikun cahad minghajr raguni". The The Cadice dells Due Sicilia, on which our law of disherison is based, said in S. 849 (2): "Se gli abbia 'irragionevolmente: negato gli alimenti"; so too Ordinance VII of 1868. The words 'unreasonably' and 'without reason• do not mean exactly the same thing. (1) As regards the former there may be In the case of ascendants they may be disinherited even by the descendant who has not been the victim of the offence suffered, as we shall later see. - 4? - "some" reason, but when adding up the pros and cons, the behaviour in question may still be unreasonable. Perhaps the phrase "without suffi- cient reason" would have been happier. Since the Courts understandably adopt a rigorous interpretation it is most probabl.e that if "any" reason exists for the refusal of maintenance, then this ground will be excluded. WHEN DOES THE OBLIGATION OF MAINTENANCE ARISE? The two requisites are that there must be "need" or "want" on the ascendant's part and the "means" on the descendant's side; that is to say, we must have a person who, on the one hand, cannot provide for his own livelihood, and, on the other, another person who, after having satisfied his own wants, has still some superfluous means of which he can dispose (Section 2?). To verify the want of the ascendant we must enquire into the means of which he can dispose to make sure that he will not live at the expense of the other. So that we must have regard not only to his in- come but also the capital value of his property, whether movable or immovable. We must also examine whether the ascendant is in a condi- tion to work and earn his own living, to carry on a trade or a profession. But in the case of the descendant we should take into considera- tion only the amount of the income and not the capital to his name, because he is not legally bound to use up his capital in order to provide for the ascendant•s living. A person who cannot provide maintenance to the claimant other than by receiving him in his own house is not generally considered as having the means to provide such maintenance; but this rule does not apply between ascendants and descendants. The obligation of descendants to provide maintenance ta their ascendants in need is, admittedly, one based on natural law and recognized by law (s. 19). A son, it is argued, who has sufficient means, and who refrains to come to their support, deserves to lose his right to legitim. Such right to a portion of his ascendant's pro- perty is recognized and secured by law; but in denying such main- tenance he was the first to sever those natural bonds which form - 48 - the very foundation and "raison d'etre" of the right to legitim. Such a violation of natural law justifies the ascendant in excluding the descendant from his succession rights. Section 18 (1) of the Constitution in the Declaration of Principles says:"Every citizen incapable of work and unprovided with the resources necessary for subsistence is entitled to maintenance and social assistance". If the State recognizes such responsability, more so should this be so when the persons are so closely related. Should this ground be retained and is it justified? It is cer- tainly a duty for the descendant to provide for his ascendant in such a case; after all he owes his very life, education and up-bringing to him or her. With regard to the problem of whether it should be retain- ed, a comment might be made. If the ascendant has not got the means of maintaining himself (and therefore he has no property to his name; he must be 'indigent•) and if he is relatively old (as he in all such probabilities will be), then there will be little chance (exceptional cases apart) of his making a fortune till the time of his death. So the de- scendant's forfeiture of his succession rights would in effect mean hardly anthing, and its scope as a punishment would be frustrated. But as we shall see, the law of disherison is meant to be more of a deterrent; but even so it would not be effective. So that this ground is on- ly of limited effectiveness. b) ABANDONMENT OF INSANE TESTATOR (*) The second ground admitted by our law for disherison is 11 where the testator has become insane" and "the descendant has abandoned him without in any manner providing for his care." This ground was included in the Cadice dells Due Sicilia (s. 849, 3) and the Cadice Sardo (S. 738, 3). It v.as not inclUded in the Cadice per gli Stati Estensi and the Cadice Parmense. The Civil Code of Louisiana includes it (Art. 1621, 6), but the Spanish Code does not. ~ German Civil Code does not mention this ground, but perhaps it could fall under Art. 2333 (b) concerning wilful ill-treatment of the testator. Three requisites are again essential. been insane. enough. The ascendant must have Mere mental infirmity not amounting ta insanity is not Actual insanity is required. A problem arises as to whether he has to be certified medically insane or otherwise. Provided insanity - 49 - can be proved this would be enough. As to which mental ailments or di- sorders will constitute insanity poses a colossal problem, because the demarcation line between sanity and insanity cannot be clearly drawn: in between lies a grey area which cannot be gauged. Morever, a person certified insane by a psychiatrist may be sane for the lawo If any doubt exists on this it would manifestly have to go in favour of the disinherited descendant. What the law is probably contemplating is insanity that leads the ascendant to the position in which he in incapable of looking after himself and who requires specialized attention. The second requisite is that the descendant should have in fact abandoned the ascendant. To be abandoned also by his descendant, es- pecially a son or daughter, in such circumstances, would certainly not do much to alleviate the grief in which such a person has fallen. The third requisite is that the descendant has failed to provide for his care in "any" way. If he has provided 'insufficient' ea- re in some way or another, then this ground would have to be excluded. What if it was th8 .. descendant who sent him to 'a Hospital !for Mental Diseases? It could be said that an doing so he·''did provide some care. Still the intention might have been to get rid of the resulting nuisance. Then perhaps in such a case all would depend on whether one may prove the requisite intention to injure or hurt the ascendant. For a dishe- rison to succeed there must always be proved a malevolent intention, at least in the general case, against the testator. there are exceptions, as we shall see. This is the rule, but The Cadice dells Due Sicilie said "Se divenuto furioso, lo abbia lasciato in abbandono senza prender cura di lui"; the Cadice Sardo "senza prenderne 1 alcuna' cura". With regard to this ground an interesting question arises. Section 634 sayR, (c) The following persons are incapable of making wills:those who are interdicted on the ground of insanity; (d) those who, not being interdicted, are not of sound mind at the time of the will". Now a disherison must be made in a will and it must be made after the incident has taken place. This means that if the ascendant was interdicted, such interdiction must have ceased at the time of mak- - 50 - ing the will. This means that if the ascendant was interdicted, such interdiction must have ceased "".t the time of making the will. Or, if he was not interdicted, he must have been of sound mind at the time of the will containing the disherison. So that the party alleging the dishe- rison may have to prove the fact of the testator's insanity and that when he made the will he was sane or had a lucid interval. If the ascen- dant remains insane till death, then, presumably, no effective disherison can be made. But this is not necessarily so in all cases. First of all, • • • per distruggere la presunzione della validita' del testamento ••• la prova che il testators non si trovasse in condizione di sanita' di mente allorche dispose dei suoi beni, dev 1 essere piena e rigorosa ••• " (Vol. XXV, pt. I, P. 246) • 11 Yet, 11 • • • jekk jigi ippruvat 1-istat tad-demenza fl-epoka qabel it-testment, fl-epoka tat-testment u anki wara, min irid isostni 1-validita• tat-testment ghandu jipprova 1-intervall lucidu" (Vol. XXX, pt. I, P. 176; see also Vol. XXIV, Pt. I, P. 793). In "Bonavia versus Bonavia" Judge Caruana Curran rightly added:"Il-Qorti thares ukoll, u anzi thares izjed, lejn il-mument tat-testment, u dana stante ir-riluttanza tal-ligi biex tannulla d-disposizzjonijiet tal-ahhar volonta', 1-presunzjoni tal-validita' taghhom u 1-gurisprudenza dwar il-lucidu intervall li ghandha tinklina lill-gudikant biex iktar jahseb li t-testment sar f 'wiehed mill-lucidi intervalli, jekk dawna jirrizultaw mill-provi milli le" (20 - X - 1971. See also Vol. XXIV, pt. I, P. 112; Vol. XVII, pt. II, P. 5 and 10 Dec., '97, P. 251). But how is one to know whether the testator was sane at the time of the will? Judge Caruana Curran points out in the same judgmant, that, L-ahjar indizju fi kwistjoni simili huwa 1-kontenut stess tat-testment li jista' bli stranezza, bil-kontradittorjita jattesta ghall-istat tal-infermita' mentali tat-testatur" (See also Vol. 30, pt. I, P. 176; Vol XXVIII, pt. II, P. 393; Vol. XXII, pt. II, P. 88; Vol. XVII, Pt. II, P. 5 and J. Pace v. C. Chircop (Asse Genovese), 4 - VI - 1964). 11 This does not provide conclusive proof though. It should be not- ed that a disherison contained in a will of a suspected insane person /to will not help in the least/dispel insanity• it may rather raise a pre- sumption of insanity, and the will could be attacked on this. The principle of intellect and will power applied with the rule established in Banks v. Goodfellow (1870) L.R. 5 Q.B. 549 was applied in "Mifsud v. Giordano" (Vol. XXXVI, (2) pt. II, P. 404) (2). To see whether the tes- See Dr. LFarrugia Sacco•s thesis on "Capacity to make a will". 51 - tater was capable of making a will, • • • l-kwistjoni kollha tirraggira ruhha dwar il-problema jekk il-partikulari testatur jinsabx f 1 kundizzjoni mentali tali, minhabba 1-inkapacita•· naturali, l-eta 1 avanzata, mard jew insanita', li jifhem li dak li jkun qieghed ihalli bittestment mill-istess proprieta' tieghu jkun qieghed ihallih lil 1 certa' persuna, jew persuni, li jifhem il-portata talestensjoni tal-assi tieghu u, li jifhem in-natura u 1-effetti tal-att propriu fir-relazzjoni mal-pretensjonijiet naturali ta' dawk il-persuni li jigu eskluzi bit-testment tieghu ••• " "Imma ghall-validita• ta• testment huwa bizzejjed li ttestatur ikollu 1-kuxjenza, jew ahjar li jkun jaf u jifhern, x'ikun qed isir, u li fil-fatt ikun sar, b'mod li mhux imprexindibilment mehtieg li 1-volonta' intelligenti u libera tattestatur tkun perfettament u rigorozament sana". 11 It may therefore happen that the testator be medically insane and capable of making a will at the same time, because not all mental ailments will render a person incapable of making a will:"Mhux kull infermita 1 mentali tirrendi inkapaci li wiehed jaghmel testment, imma stat psikopatiku tali li minhabba fih it-testatur ma jkollux nozzjoni tad-drittijiet u doveri tieghu, u ma jkunx jikkomprendi 1-importanza u 1-konsegwenzi tal-azzjonijiet tieghu; ••• 11 (Vol. XLII, pt. II, P. 1085). Our Courts have in fact been reluctant to accept the principle that a psychiatrist can decide whether a person was of sound mind at the time of the will for the purposes of the law (See Vol. XX, P. 193; Vol. XXIV, pt. I, P. 793 and Vol. XXXIV, pt. pt. I, I, P. 108). But still in the generality of cases this ground of disherison might prove to be ineffective as a deterrent. It should be emphasized that it could possibly be difficult for the party alleging the disherison to prove at one and the same time, the insanity of the deceased and - to retain that the testator was capable of making a will, if the will was made during insanity. If made when the ascendant has regained his sanity, then the matter would not present such difficulty. In justification of this ground of disherison it is said that a son, "che contropone una cosi invereconda indifferenza alle tante affettuose cure, che 1 1 infanzia esige da' genitori, ed alle quali questi con tanto zelo si prestano, non puo' aspirare alla protezione di quelli leggi, che ascoltando le voci della natura, e ncn gia' soffocandole, han serbato a' figli una quota de' beni degli ascendenti" (Troplong; Nota del Traduttore, Page 355) (3). (3) This ground was included under Justinian's law; Nov. 115, cap. 3, para. 12: "Si quis de praedictis parentibus furiosus fuerit o a o II - 52 - c) RELEASE FROM PRISON (4) The third ground on which an ascendant may exclude his descen- dant from his succession rights is "where the descendant could release the testator from prison" and he has "without reasonable ground failed to do so". We find this ground in the Cadice Estens:; (s. 842, 3), the Cadice Sardo (s. ?38, 4) and the Cadice Parmense (6. 653, 2). The Cadice delle Due Sicilie has this ground too, but*•with a slightly different twist:-iisl3non=abbia curata di riscattarlo divenuto prigianiero presso il nemico, quando il poteva" (s. 849, 4). We do not find such ground in the German Civil Code. The Code of Louisiana includes as just grounds for disherison:- "If the child has refUsed to become security for a parent, having the means, in order to take him out of prison," and, "If the child refused to ransom them, when detained in captivity" (Section 1621, 9 & ?) • The Spanish and Austrian Civil Codes do not include this ground. Our provision applies solely to the cases where the descendant may release the ascendant from prison. by an enemy? Does "prison" include captivity What if the ascendant has been kidnapped and held captive? If the descendant refuses to ransom him, a thing which he is not bound to do by law, could he be disinherited? The law uses the term "prison" and this, it is suggested, has to be understood in its usual legal meaning, and cannot be extended to include captivity. The ascendant has to be confined in prison by virtue of an order of arrest emanating from a Court or other competent authority. But even if he is in prison in virtue of an illegal arrest, and the descendant may obtain his release, and he does not, then he may be disinherited. If the ascendant has been arrested and detained in prison whilst awaiting trial for a criminal offence, he might be released an his giving bail. Until conviction his detention is accompanied by the presump- tion of innocence, and if there are not good and sufficient reasons to withhold this benefit to the accused, then it should undoubtedly be granted. In general the security required for bail consists in the pro- duction of a sufficient surety who enters into a written recognizance in the sum fixed by the Court. Whenever the Court deems it proper, the se- curity may be given by the mere deposit of the sum or for an equivalent (4) Nov. 115, cap. 3, para, 8: 11 Si quemlibet de praedictis parentibus inclusum esse contigerit ••• " and Nov. 115, cap. 3, para. 13: "Si unum de praedictibus parentibus in captivitate detineri contigerit". - 53 pledge, or the mere recognizance of the accused. The descendant might be able to help also in this respect. Release from prison for commercial debts (arrest for commercial debts is quite a rare occurence) may also be obtained by giving a security far payment, or by paying the sum in question. It is improbable, though, t h a t. a disherison will be effective, if the decuius could obtain his own release, by paying the debt himself, or by resorting to bankruptcy proceedings or to the benefit of "cessio bonorum", as the case might be. Prison life entails restrictions on one's liberty and freedom of movement with consequent bitterness and suffering, especially of a mental nature. A son who has the means and is in a position of causing such hardships to cease, should obviously employ a portion of his assets to that effect. If he does not, it is said, he does not have the heart of a son and does not deserve to be treated as such. This is the argument brought forward for this ground. Nonetheless, this motive of disherison, like the others, depends on the concurrence of various circumstances that must be taken into consideration. It is up to the judge to evaluate the matter, to see whether the descendant was motivated by hate, by odiousness, whether his reproveable behaviour was due to cruelty or perversity or whether, on the other hand, it was due to lack of funds which he required for himself or for his family. The amount of his income is also to be taken into consideration to see whether a higher sense of duty caused him to act as he did, contrary to his wishes:Percio 1 mentre nel progetto era scritto 'negato gli alimenti', sulla proposizione del Consigliere Commendatore Filangieri fu premessa a quelle parole l'espressione 'irragionevalmente'; la stessa redazione del progetto esprimeva poi in quanta al dovere del riscatto la limitazione, che nell'articolo si legge •quando il poteva'" (in our law "without reasonable ground" ) ( Troplong. , op. cit • , P. 355) • 11 This ground, though justifiable, seems to me to be of limited application and ought to be removed. Why include this ground and not include expressly serious physical offences against the testator or his wife? - 54 - d) STRIKING CF TESTATOR OR CRUELTY (5) The fourth ground of disherison is where "the descendant has struck the testator, or has otherwise been guilty of cruelty towards him". The Cadice dells Due Sicilie said: "Se siasi renduto colpevole verso dei genitori di sevizie o di qualunque delitto" (s. 849). The Cadice Sardo said the same thing (s. 738, 5). The Cadice Parmens~ said: "Se avra' gravemente percosso il testators, attentato alla "Cli lui vita o trascurato per non lieve colpa di difenderlo, quando egli era in pericolo di gravi percosse, o di marts" (s. 653, 1). The Cadice Estense said: "se si e 1 reso colpevole verso uno dei genitori di sevlzieo-di altro delitto; ovvero se ha trascurato, per non lieve colpa, di difenderlo, quando egli era in pericolo di gravi percosse, o di morte" (s. 842, 2). The German Civil Code in Section 2333 (b) and (c) includes as just grounds: firstly, wilful ill-treatment of the testator or of his spouse (6), and, secondly, when the descendant is guilty of a serious criminal offence against the testator or his spouse. The Civil Code of Louisiana includes as good grounds the cases where the child has raised his or her hand to strike the parent, or if he or she has actually struck the parent; but a mere threat is not sufficient (Art. 1621, 1); and where the child has been guilty towards a parent, of cruelty, of a crime or grievious injury (Art. 1621, 2). In Hungapy an "heres necessarius" may be excluded for serious crimes committed to the testator 1 s prejudice or to the prejudice of his relatives in the direct line or of his spouse. So too Polish law allows disherison of a necessa.ry heir who has committed a i:i8111ierate criminal offence against the health or freedom of the testator or a person close to him. FIRST LIMB OF SUBSECTION (d) As regards the first limb of our law's subsection, it is necessary that the descendant has in fact struck the testator, and, it is submitted, this must have been done with full deliberation. tese text says "sawwat"; dinance. The Mal- the word "percosse" was used in the 1868 Or- Crimes against the person, such as bodily harm, could be in- eluded under "struck"; but what about bodily harm resulting from an omission to do something? This would obviously not fall under this part of the law, but could be included under some other ground of disherison, such as cruelty or grievious injury. also be included under grievious A slap, for instance might in~ult:- "Lo schiaffo, sebbene data col proposito di recar offesa pur sempre una percossa, e quindi lede contemporaneamente il diritto all'incolumita' personale e il diritto all•integrita' dell'onore; e• dunque nello stesso tempo una lesions personale e un ingiuria" (Piro~ (5) (6) Nov. 115, cap. 3, para. 1: "si quis parentibus suis manus intulerit". Ill-treatment of the spouse is a ground of disherison only in so far as he is an ancestor of the person guilty of such ill-treatment. - 55 - mallo, Jannitti Alfredo,"Ingiura e Diffamazione", Page 74). To constitute an insl.lltl and Elven a grievious one, as when done in public, it is not necessary that the descendant hit the ascendant's face: the act is enough, even if it is unsuccessful, but then it would fall under (e) (See Piromallo, J.A., op. cit., P. 74, note 1). The physical pain, produced by a slap is generally slight, but it may be accompanied by incomparable mental anguish. WILFUL BEHAVIOUR The descendant's behaviour, in my opinion, should have been voluntary and deliberate. So that if it was the result of provocation by the testator himself, or of anger or passion, or of drunkenness or insanity, this would provide, in the appropriate case, an adequate defence. So too, if his striking the testator was due to automatism, epilepsy or drugs, the descendant's behaviour could be excused. The word "cruel" carries with it implications of "guilt". CRUELTY As regards the second limb of this subsection, this causes some difficulty as to what we are to understand by cruelty ( 11 mohqrija 11 in Maltese; "sevizie" in the 1868 Ordinance). The aim of the descen- dant's behaviour is very important, in my opinion, not only with regard to this ground, but to all the grounds of disherison. cendant must have the intention of inflicting pain. The des- His behaviour should be characterized by a feeling of hate, malice or brutality. It is often thought that to constitute cruelty physical violence is necessary. But it may be that any unjustifiable conduct which so grieviously wounds the feelings of the ascendant or which so utterly destroys the ascendant's peace of mind as to seriously impair the latter's health could amount to cruelty, if accompanied by the requisite intention on the descendant's behalf. Cruelty may consist of a single act or of a persistent highly distressing behaviour. Cruelty may also consist of many acts, each slight, when considered "per se 11 , but sufficient when considered as a whole to endanger even life itself. Whether inhuman treatment is dangerous depends not only upon the physical, but also upon the moral, mental - 56 and spiritual qualities of the victim. held that a person may be 11 In an American judgment it was killed by unutterable kindness, worse than a life of blows". Cruelty could result from torture, ill-treatment, physical injuries, unjust privations, and any behaviour in general "intended" to inflict a physical injury or which tends ta diminish the ascendant's personality. Cruelty may be mental, and this is often confused with grave insult. Cruelty in fact often constitutes grave injury at the same time. OBJECTIVE OR SUBJECTIVE TEST? But are we to adopt an objective or a subjective test? The as- cendant, due to his being of an extremely sensitive nature might consider his descendant's behaviour as amounting to cruelty, whilst in actual fact a standard reasonable man might consider such behaviour in question as amounting to something less than cruelty. An objective tesif.should nevertheless be applied in all cases of disherison. other- wise by adopting a subjective criteria one would easily prejudice the descendant's interests by adopting a stricter test. sonable man considers the descendant's behaviour as ascendant does not judge it so? But what if a reawhilst the cr~el, Could the ascendant, being .conscious of the fact that a reasonable man would consider such behaviour as being cruel. unjustly avail himself of such cruelty to disinherit? My opinion is that this. fact should go in favour of the descendant and the disherison should be cancelled. The circumstances of each case would of course have to be analysed separately. DIFFICULTY OF DEFINING CRUELTY Cruelty, as seen may take a multiple variety of forms and difficulty is caused by the fact that we do not find any definition of what constitutes cruelty in our law. And this is obvious. necessarily left to the Court's discretion ta decide. This is Behaviour that might not amount to cruelty between two unrelated persons may amount to cruelty when it exists between a father and a son. ~ sible definition of cruelty may be set "a priori". -· in relation to all the circumstances of the case No pas- Again, what might - 57 - be cruel in one particular case, may not be cruel in another, when one considers the way of life of the persons concerned, their status in life, their education and so on; one would also have to look into their environmental surroundings, that is tha customs, morals, beliefs, et cetera, of the place in which they reside. (e) GRIEVIOJS INJURY (7) The law states that "if the descendant has been guilty of grie- vious injury (8) against the testator" he may be disinherited. The Cadice dells Due Sicilie does not include this ground expressly, but mentions 11 s9\iizie o di qualunque delitto" (s. 849, 1) against the testator. The Cadice Estense does not include this ground, but says "Se ha intentato contra il testatore un•accusa, per cu:i. questi fasse esposto a pena afflittiva per delitto infamante" (s. 842 1 4); so too the Cadice Parmense (s. 653, 3). As regards the German Civil Code we have already referred to Section 2333 (b) and (c). The Spanish Civil Code includes as a ground of disherison ill-treatment or insult by word of mouth (S. 853, 2). This ground goes hand in hand with the previous one ta some extent: in fact in the Code of Louisiana they are dealt with in the same subsection (s. 1621, 2), as already seen. This ground refers especially to offences launched against the testator's honour and reputation, which give rise to mental suffering. Ordinance VII of 1868 said "grave ingiuria" (9). But does the law con- template only insults consisting of words or actions against the ascendant 1 s honour? The term "grievious injury" in this context is probably more extensive than the term "ingurja gravi" used in Criminal law. Gode of Louisiana uses the term "grave injury". The In "Attard Montalto v. Attard Montalto 11 it was held that "grievious injury" in the law of disherison is that "~ j~ ~' li tikkontjeni 1-imputazzjoni t3 1 xi fatt li jippregudika 1-unur ta' 1-axxendent". The Criminal law in punishing the crime of "ingurja gravi" seeks to protect the citizen's reputation; the civil law counterpart of the offence of "grave ingu:ria" may bear different connotations. It may embrace a wider sphere, Nov. 115, cap. 3, para. 2: "Si gravem & inhanestam injuriam eis injecerit". (8) Far the distinction between grave and slight "inguria" see: Vol. XXXVIII, IV, 855; Vol. XXIX, IV, 1000; for vague and indeterminate injuries see Val XLIII, IV, 1052; Val. XXXVII, IV, 1104; App. Krim. Farrugia v. Pace, 24-XI-45 and Mizzi v. Attard, 19XII-45. (9) "Ingurja gravi" is more appropriately translated "gross insult" in s. 47 dealing with separation; in the law of disherison it is translated 11 grievious injury", which may give rise to difficulties. This last offence includes also injuries causing physical pain,. discomfort or disability. Such offences o•ould be included under subsection (d) of Section 660. (7) - 58 so much so perhaps, that it could include private certain dom~stic affairs and acts which run counter to the "affectio" that ought to exist in a family. Now let us look into the crime as understood in Criminal law. The means by which such an offence may be committed are infinite: Cosi, un gesto, un urto, uno sputa, uno schiaffo, seguiti a scopo di offenders l'onore, costituiscono ingiuria ••• " (Frola, Delle Ingiurie e Oiffamazioni, p. 271; see also Manzini, "Trattato di Oiritto Penale it. 11 , Vol. VIII, p. 468) (10). 11 On the various forms that the crime of insult may take Judge w. Harding points out:"Hu pacifikament ricevut illi 1-ingurja, minbarra verbali u skritta, tista' tkun anki reali, ossija, kif sejhulha 1-guristi tedeski, simbolika. (Carrara, progr. Val III, para. 1763) Jghid dan 1-awtur (nota 5, p. 85 ibidem):- 'Cosi e' indubitamente reale la ingiuria fatta con un gesto nel quale si simboleggi un pensiero oltraggiante•. L-istess ukoll fid-dottrina u giurisprudenza nglizao Jghid Spencer Bower, "A Code of the Law of Actionable Defamation" p. 22: "Slanderous matter may consist of either words spoken or sung, or any physical symbols, other than words spoken or sung, as acts, gestures, inarticulate sounds or ejaculations, and the like." U ghalhekk jiddistingwi bejn "slander" li hu •verbal' u dak li hu 'nan verbal'. Jiccita mbghad, in nota (pag. 23) sentenza ta' Lord Ellenborough, S.J Coak v. Cox (1814) 4M. & S.110, fejn dan isemmi" •• act or gesticulation which may constitute or give point to a slander. Il-Gatley, Libel and Slander, p. 48, jirrileva ukoll illi "slander is defamation communicated by spoken words or in some other transitory form, whether audible or visible, such as significant sounds, looks, signs or gestures"(Vol. XLII, Pt. IV, P. 1335). 0 INTENTION For the existence of a grave insult there must be the "animus which must be distinguished from the "animus iocandi", the i~", "animus corrigendi", the "animus cansulendi", the "animus defendendi", the "animus retorquendi" and the "animus narrandi". The words themselves used in insulting the ascendant will raise a "juris tantum" presumption of the "animus iniuriandi": "Quoties ver- ba vel facta per se sunt injuriosa, toties praesumitur animus injuriand J.•II • This presumption may be disproved:• • • kif inhu pacifikament ammess, din il-prezunzjoni hi biss 1 juris tantum', kif jasserva 1-Crivellari, Vol. VII, p. 1096, li jippreciza s-sitwazzjoni b'dan il-mod: •o le parole sono equivoche e possono prestarsi al senso non ingiurioso, o le parole hanno un senso ingiurioso per se stess e per il co11 (10) The offence is generally instantaneous: "unico acto perfecitur"; an attempt is hard to conceive; see Manzini, op. cit., P. 356 & 479. It may take the form of a continuous offence (reato continuato) or a continuing offence (reato permanente), as when the 59 mune •usus loquendi', ed allora incombe alla difesa lVescludere, per circostanze speciali, l'animo ingiurioso" (Vol. XL, Pt. IV, P. 1105). It is up to the Court to examine the circumstances of each case, to see whether they are such as to exclude the "animus injuriandi":"Hu mehtieg li wished jindaga 1-intenzioni ta• min ghamel il-gest; ghaliex kif josserva 1-Carrara (Progr. Vol. III, p. 68): 'Bisagna che sia un atto nel quale si venga ad estrinsecare un pensiero offensivo all'onore altrui ••• • "Ghalhekk, f'din 1-indagini ta' 'spectare animum' wished ghandu jezamina 1-kontest tac-cirkostanzi kollha u jinterpreta 1-gest skond dawk ic-cirkastanzi" (Vol. XLII, Pt. IV, P. 1335). Vulgar and obscene words may not be injurious, when one takes into consideration the social status of the parties concerned, and their environment, where such words may be used in ordinary parlance "b 1 sens ta• semplici volgarita' u bla ebda sinifikat specjali" (Vol. XXXIX, Pt. IV, P. 936). As regards insults referring to b~odily defects, one may refer to the case of "Rosaria Grech v. Caterina Pulo", where it was held that, " ••• in 'linea di massima' meta persuna tghajjar ohra b' difett fiziku, allura hemm ingurja (ara Carrara, Vol. III, Parts Speciale, para. 1745, fuq 1-awtorita' tal-Hertius, Decisiones, Vol. 2, decis. 234, u ta' Strykio, De Jure Sensuum, disc. 2, Cap. 5, n. 4 - insenjamenti adattati mill-gurisprudenza nostrali) •••o•• hu ta' min jikkunsidra 1-principji dottrinali Inglizi fis-sens li imputazzjanijiet simili huma ingurjuzi meta jkunu ta' xarta tali li igibu 1-persuna milquta 'in hatred, ridicule or contempt• jew jeskluduha mis-societa• (bhal, per ezempju, tghajjar bniedem mignun jew sifilitiku) u mhux meta jghamluha pjuttast 'an abject of pity or sympathy'; u ghalhekk jinghad illi •words which merely injure the feelings of a man or cause him annoyance, but in no way reflect an his character, are not libellous• (ara Gatley, On Libel and Slander, p. 29 - 32)" (Vol. XXXVII, Pt. IV, P. 1104). What if the testator has provoked the descendant'? will certainly bar resort to disherison. Provocation Except with regard to those acts which are so severe that no degree of provocation can excuse them, conduct cannot be complained of when it results from normal retaliation to unjustifiable action. thus:- This rule is often formulated "That which is violent if aggressive, may be justified or excused if defensive" (Threadgold case (1959) The Times, May). For compensation of slanderto arise, descendant slanders his ascendant by an offensive drawing on a wall in front of the latter's house (See Piramallo, J.A., Op. cit., P. 94). - 60 - "hemm bzonn li jkun hemm certa proporzjan bejn 1-ingurji; imma fl-istess hin, kif jghid il-Crivellari; 1 sul rigore di questo requisito fa d'uopo procedere cautamente.' Infatti ma hux possibili li jkun hemm ekwipollGnza ezatta". (Vol. X~I, Pt. IV, P. 813). Falsely charging the testator with a crime punishable with death or hard labour may entail unworthiness to inherit. The report must be "capable of deceiving" and impeding the administration of justice. When the report lacks one of the essential requisites for a "falza denunzia", it may nevertheless amount to a grave insult, if there is attributed to the testator some reproveable fact (Vol. XXIX, rt. IV, P.487) and may be availed of to disinherit. The Civil Code of Louisiana, similar to the Cadice Parmense in S. 653 (3) and the Cadice Estense in 8. 842 (4), includes as a valid ground for disinheriting the case where the child has accused the parent of any capital offence, excepting, however, that of high treason (as under Justinian's law) (c.c. of Louisiana, s. 1621, 4). My personal opinion would be that this alone would not be a good ground under our law for disinheriting, since it is not included expressly, even though the law imposes no obligation on the descendant (exceptional cases apart) to give information. DISHONOURABLE CONDUCT 11 Maria Salvina dei Baroni t\ttard Montalto v. Tabib Dr. Angelo dei Baroni Attard Montalto" was a case which dealt expressly with 1grievious injury'under the law of disherison (Vol. 33, Pt. II, Pa 357). Here the Court said that dishonourable conduct on the descendant's part does not generally amount to 1grievious injury.' This leads to a very interesting point, when one remembers that under German, Hungarian, Polish and Austrian law if the descendant leads a dishonourable or immoral life against the testator's wishes, he may be disinherited. It was submitted in this case that the descendant's dishonourable conduct was included under the meaning of "grave injury", but Judge T. Gouder rojected this reasoning, stating, "Illi dina 1-interpretazioni li 1-konvenut irid li tigi moghtija lill-imsemmija dispozizzjrni tal-ligi, li tikkontempla 1-ingurja gravi bhala kawza ta• dizeredazioni ma tidher xejn accettabli, jekk wished izzomm quddiem ghajnejh id-dispozizionijiet 1-ohra tad-dizeredazioni u 1-istorja ukoll ta' dak 1-istitut". He then examined the law under Justinian and noted that in the fourteen cases therein specified, the ground of disherison based on insult is kept distinct from grounds based on immoral conduct. Grie- vious injury is qualified by the condition that it must be prejudicial - 61 - to the ascendant's honour. Cases of bad or scandalous conduct were men- tioned specifically and constituted separate grounds; even incest by the son with his mother was mentioned as a separate and distinct ground to be disting1.Jished from grievious injury ( 11). The Judge then went on to say that, • • • l-istorja tal-istitut tad-dizeredazioni turi kwindi illi 1-kondotta hazina ta• 1-ulied jew tad-dixxendenti, li biha tista• titnaqt:Jas ir-reputazzjoni taghhom; ma tidhalx fil-kawzi ta• 1-ingurja f 1 materja ta• dizeredazioni ••• li 1-ingurja li~ axxendent kontemplata bhala kawza ta• dizeredazioni, hija dik verbali jew reali, li tikkontjeni 1-imputazzjoni ta• xi fatt li jippregudika 1-unur ta• l-axxendent. 11 11 This appears clearly from a close examination of our law of disherison:Oifatti, il-kaz ta' meta d-dixxendent ikun hati lejn ittestatur ta' ingurja gravi huwa kontemplat bhala kawza ta' dizeredazioni fl-ittra (e) ta' 1-artikolu ••• ; u mbaghad fl-ittra (f) hu kontemplat il-kaz ta' meta 1-bint jew dixxendenti ohra tkun prostituta pubblika minghajr naturalment, il-konvivenza tat-testatur. 11 If any type of bad conduct could be a ground for disherison and included under the subsection on grave injury, there would have been no need to include as a separate ground the case of the daughter's prostitution: l~ this would have been superfluous. the Judge quite rightly went on to add that dishonourable conduct could nevertheless be a good ground for disinheriting, .....,. if it can be included under some other ground:"Il-kondotta hazina tat-tifel jew dixxendenti iehor tista• tkun tikkonsisti f'atti ta' krudelta 1 abitwali jew f'atti tali li t-tifel jew dixxendent iehor, jaghmel apposta biex jinki, u b 1 hekk iwe.gga 1-qalb tal-genituri jew axxendenti ohra, jew f'atti li bihom inaqqas 1-istima u r-reputazzjoni ta' 1-e.xxendent ; imma f 1 dawn il-kazijiet mhix il-kattiva kondotta li taghti lok ghad~-izeron, imma 1-mohqrija konternplata fl-ittra ( d) taccitat art. 660 tal-Kodici Civili fl-ewwel kaz, u fit-tieni kaz 1-ingurja kontemplata fl-ittra (e) tal-istess artikolu ••• 11 This g:co·Jnd is clearly one of the important grounds of disherison. It shoulrl be retained and is in con·. ormity with logic and rea- son, subject to what we shall say hereafter 65 regards reconciliation and the descendant• s cor.varsion or change of life. (11) Nov. 115, cap. 3, para 10: "Si praetor voluntatem parentum inter arenarios, vel mimos sese filius sociaverit; & in hac professions permanserrc: nisi forsitan etiam parentes ejusdem professionis fuerint"; para. 12: "Si cum maleficis hominibus et maleficus versatur" • 62 - (f) PUBLIC PROOTITUTE (12) The law says the descendant may be disinherited, "if in the ea- se of a daughter or other female descendant, she is a public prostitute, without the connivance of the testator". We find this ground in the Cadice dells Due Sicilie (S. 849, 5), the Cadice Estense (s. 842, 6), the Cadice SardQ'"Ts7"'73s, ?) and the Cadice Parmense (s. 653, 6). The German Civil·"Code (s. 2333, 5) includes this ground, as does the Austrian Civil Code (S. 768, 4), and the Spanish Civil Code (s. 853, 3). WS-do not find it in the Civil Code Of""" COUisiana. 0 FEMALE DESCENDANT This ground in our law applies only to a female. A son, however immoral or sexually debauched he may happen to be, is not included; the disherison in this latter case would have ta be based, if at all, on same other ground. The German Code allows disherison for "immoral or dis- honourable conduct"; the Austrian Code for "leading a life contrary to public morality." The Hungarian and Polish Civil Codes do not li- mit the ground to female descendants either. WHAT IS PROSTITUTION? Prostitution means the yielding or offering of the body for promiscuous sexual intercourse or commonly for acts of lewdness, usually for payment (Mamo, Prof. Sir Ant.; Vol. II, P. 230). siad: Darling, J., had "Prostitution is proved if it be shown that a woman offers her body for purposes amounting to common lewdness for payment in return (De Munck (1918) 1 K.B. 635 at p. 637). In defining prostitution in Webb, Lord Parker, C.J., rejected the argument that prostitution is limited to cases in which the woman offers herself for ordinary sexual intercourse and approved the decision in "de Munck", where a conviction for procuring a girl to become a common prostitute was upheld, despite the fact that it was actually proved that the girl was "virgo intacta". is that a prostitute may well be a virgin; My personal opinion for example, if she has ab- normal sexual relations with men, would not this be prostitution'? In de Munck it was argued that it was sufficient that the girl had expos( 12) Nov. 115, cap. 3, para. 11 : "Si aliqui ex praedictis parentibus volenti suae filiae, vel nepti matitum dare, & dotem secundum vires substantiae suae pro ea praestare, illa non consenserit, sed luxoriosam degere vitam elegsrit". - 63 ed herself to men in order to their passions. grati~y Webb went even further than this. Though the nature of the lewdness was not proved in de Munck, it may yet perhaps be presumed that the men did something to the girl. In Webb ( 1963, 3 All E.R. at p. 1?9 C.CoA.) the girl was employed as a masseuse and was expected as a part of her employment to masturbate clients who so desired. The Court rejected the argument that the role of a prostitute must necessarily be passive and that active indecency of this nature could not amount to prostitution, saying, "Indeed it can be said with some farce that same activity on her part is of the very essence of prostitution. It cannot matter whether she whips thema.n or the man whips her; it cannot matter whether he masturbates himE.elf on her or she masturbates him". In the case of Stephen Ward (The Times, July 31, J., cautiously limited his definition of prostitution to 1~63) Marshall, n~rmal se- xual intercourse (13). PUBLIC PROSTITUTE Moreover our law says she must be a "public" prostitute. It would not be enough if the daughter has frequent sexual intercourse with one or two particular persons. general public; Her services must be open to the but even if she were to reject occasionally some- one or other, this would not be enough to render her prostitution of a private nature. Still the term public may give rise to possible difficulties. Concubinage does not obviously amount to prostitution (Vol. XL, P. 663 on dissolution of lease). to set: I, pt. But the borderline may be difficult a sexually perverted woman need not necessarily be a public prostitute. For instance, what if the daughter practices sexual in- tercourse with members of a particular club open only to members? She may have intercourse with various persons, but still her prostitution would be limited to a particular sector of the public. Even so, my opinion would be that she would still be a public prostitute in such a (13) This might have been because he summed up the day before Webb came before the House of Lords and Marshall, J., probably envisaged the possibility that de Munck might be overruled. - E4 ·- caseo ARE OTHEH FACTS FlELEVANT? The faci:; of ile:c b9ing a public prostitute is not enougho itself also adds 11 'f!ithout the connivance of the testator11 " The law If he encou- incited, aided or abetted her prostitution, or even worse, lived raged~ on the earnings of her prostitution, then obviously, he cannot disinherit her! But what if he was partly to blame, as for example, by not provid- ing her with the necessary means or by finding her some employment which evenutally led to sL1ch debauchery? excluded. Then this ground would have to be It must in fact be admitted that many a time parents are to blame when daughters end up being prostitutes:- and in other lamentable cases, inexperiencG, misinformation, ignorance or malicious counsel may have been the cause whict1 pt..!shed her to that last stage of sexual corruption. In similar cases, the person ought not to be judged w:i.th ex·- treme harshness. MENTAL DEFICIENCY Mental deficiency is also a factor that ought to be taken into consideration as it could possibly provide a good defence to di.f:;herison, for the female descendant may in fact be quite ignorant of her morally reproachable behaviour, and in such a case she ought not to be punished, even though she might have vilified her ascendants. It should be remem- bered that disherison is meant as a deserved punishment, but in this case there might be nothing to punish; William Brend in his book 11 other remedies might be resorted to. A Handbook of Medical Jurisprudence and Toxicalogy 11 says that "it may be exceedingly difficult to distinguish between .nenta.l ceficiency and excessive depravity" and "the line between the bilo is often very difficult, if not impossible, to drawn" furthermore ad:~ tho.t 11 He the treatment of border-line cases, which are partially w:tck..:;ci and pm'i:ially insane, is one of the greater problems in the administra-cion of .:..;rirninal law" (Quoted in Vol. 33, Pt. IV, P. 586). It is a fact tha-c mental deficiency is often associated with prostitution. Or. this :-:JOint from investigations ment:Loned in the book "The Measurement of Intelligence" of Lewis Terman, there is mentioned 'inter alia 1 the test carried out by Dr. Anna Dwyer, wherefrom it resulted - 65 - that out of five hundred and sixty four women who prostituteu themselves, half of them, or even more, wer.e mentally deficient. So that in certain cases, moral insensibility may lead to complete lack of judgment as to what is right or wrong; the prostitute may have a mental lacuna so se- rious and grave in the sphere of moral ethics that her behaviour may be morally blameless. JUSTIFICATION This ground of disherison is justified by the fact that it blemishes in an incomparable manner the family name and constitutes a morally reprehensible offence. Its being included as a ground for disinherit- ing might deter a daughter from falling into such a mournful state as that of prostitution. Prostitution unfortunately is a "social fact, deplorable in the eyes of moralists, sociologists and ••• the great majority of ordinary people (Wolfenden Committee Report, Cmnd. 247. P. ?9) and its being ineluded in the law of disherison manifests the law's concern and desire of preventing prostitution,(14). (g) MARRIAGE UPON PARENTS' OPPOSITION The last ground "mala mente" on which a disherison may be based is where "the testator, by reason of the marriage of the descendant, shall have been under the provisions of Sub-title II of Title I of Book First of (the Civil) Code declared free from the obligation of supplying maintenance to such descendant". The right to maintenance under our law, as the right to succession, may cease to have effect when the person entitled thereto has been guilty of a serious offence against the person who is bound to provide for him. This explains why one may forfeit the right to maintenance or to a dowry for any of the cases in which one may forfeit the right to succession (s. 39, 1). But such rights of maintenance are lost for a cause that must have taken place recently, as otherwise the presumption is that such offence has been forgotten and forgiven (s. 41). We find this ground in French intermediate law:" ••• in Francia abbiamo un'altra causa che permette a• padri di diredare i figli, quando si maritano senza il loro assenso" (15). f14) Note that the law says "she is", so that if she does not remain (15) a prostitute at the time of the testator's death, the disherison does not have effect; this view is preferable, in my opinion. Oomat, Vol VIII, P. 28. So too Pothier, "Oeuvres de Pothier", P. 25: "Une fille qui, avent l'age de vingt-cinq ans, un garcon qui, avent ltage de triente ans, se marient sans le consentement de leurs - 66 - We also find this ground in the Coriice Sardo (Sn ?38, 6), but not in the Cadice delle Due Sicilie, Estense or Parmense. This ground is not included in the German Civil Code, the Spanish Civil Code or the Austrian Civil Code. The Civil Code of Louisiana limits this ground to the case when the son or daughter, beinga"11 ffiiiior 11 marries without the consent of his or her parents (s. 1621, 10). Then s. 1622 limits this ground to the parents only, i.e. ascendants cannot disinherit on this ground. OPPOSITION AND MARRIAGE According to Section 34, "The obligation of any person to supply maintenance to another and the obligation of a parent or grandfather to assign a dowry to the daughter or grand-daughter shall cease if the person in whose favour either of such obligations is or both obligations are established, shall contract marriage, notwithstanding the opposition of the person liable as aforesaid." Opposition to such a marriage must be motivated by a just cause; the law mentions as just causes: lack of means which are necessary to maintain a family having regard to one's social condition, and, the bad character of the other party Vol. XV, P. 101). (s. 35; See Vol. XLIII, pt. II, P. 837 and The law sanctions such opposition to the marriage when those who marry lack the necessary means to marry, but not also when they lack the means to live in comfort or in luxury; the Court will always take into consideration the fact that when the family increases the husband's profits will increase (See Vol. IX, P. 754; Vol. XIII, P. 545 and Vol. XXIX, pt. II, P. 1225). As regards the necessary means for living, it was held in "Naudi versus Micallef" by Judge P. De Bono (Val.XVI, pt. II, P. 130) that, • • • quindici pence al giorno, avuto !:,;Lguard..,2 alla condizione della convenuta, nel succitato atto di matrimonio indicata come figlia del defunto Marchese Salvatore Mallia Tabone, non poss0no prestare i mezzi necessari di sussistenza". 11 FURTHER REQUISITES In "Carmel Sapiano et v. Maria Dolores sive Doris Sammut" (Vol. XLIII, Pt. II, P. 837) it was further declared that, "Biex il-genituri jigu dikjarati ezenti mill-obligu li ••• ( jmantnu lil binthom) jekk tigi fil--bzonn, meta din tkun izzewget kontra 1-volonta• taghhom, jehtiegu zewg rekwiziti, u cjoe• li 1-genituri jkunu ghamlu oppozizzjoni ghaz-zwieg ta• binthom b'att gudizzjarju dirett kontra taghha u tar-ragel li kienet sejra tizzewweg, LI dan qabel iz-zwieg, LI jkLinu ghamlu d-domanda ghal din 1-ezenzjoni fi zmien sitt xhur mic-celebrazzjoni taz-zwieg, u li jkollhom raguni tajba ghal din 1-oppozizzjoni taghhom". pere-et mere, sont sujets a la piene de 1 1 exheredation. Ordnannce de Henri II de 1556; celli3 de Blois, art. 41; la decl. de 1639." See also Pertile, A. "Storia del Oiritto Italiano", Vol. IV. 67 - The opposition must be formal, that is, made by a judicial act (8. 34, 2), generally a protest filed in the Registry of the Civil Court of the Island in which the person objecting or either of the said party resides. It may happen that the marriage is solemnized without the previous banns, which may have been dispensed with by the competent authorities: in this case Section 36 says that if the person whom the law holds responsable for maintenance was not cognizant of the intend- ed marriage at least fifteen days before its solemnization, then he shall be exempted from making his or her opposition in the formal way prescribed. The demand for release from such obligations is to be made within six months following the solemnization of the marriage (s. 34 & 36); the objecting party must obtain his release by a Court judgmer.t after due investigation into the reasons for his opposition. "IPSO FACTO" RELEASE But in the case foreseen by Section 37 such release operates "ipso facto". This happens when matrimony is celebrated without the previous banns, so long as these have not been dispensed by the competent authority. OPPOSITION TO EXIST AT ALL TIMES The forfeiture of rights shall not occur if the marriage was initially favoured by the opposing party:"La legge ••• ha avuto per oggetto di porre un Freno ai capricciosi e mal consigliati matrimoni, talche' invano potrebbe reclamare i vantaggi della stess chiunque avesse favorito o con mezzi anche indiretti ad equivoci annuito agli sponsali di chi e' intitolato ad avere gli alimenti, non ostante che serotinamente avesse manifestato la sua opposizione alla celebrazione del ma.trimonio" (Vol. VIII, P. 91). RESTRICTIVE INTERPRETATION It would. not be amiss to quote Judge F. Pullicino, who in11 Vincenzo e Carmela conjugi Cremona v. Rosario Cremona ed altri" (Vol. VIII, P. 91) had said:(These sections of the law)"devono essere restrittivamente interpretati ••• e cio molto piu' quando il soggetta della privazione e' un figlio o discendente, al quale gli alimenti sono dovuti non solo per disposizione di legge positiva, ma anche per diritto di natura". "Che onde evitare la inflizione di una pena cosi' dura, quale e' la privazione perpetua degli alimenti (and possible disherison), la minima scusa sarebbe sufficiente, e in caso di dubbio si - 68 - deve pronunci.are per colui, che ha i.n suo favore la lagge na-b.Jr'ale e civile" (See also Vol. XXll, pt. II, P. 4?6). PROOF It seems that this is the only ground of disherison that need not be proved after the opening of succession, as is normally the case, by the party alleging the disherison in spite of what Section 662 says. This is because the law says that the descendant may be disinherited where the ascendant has in fact been "declared" (iddikjarat) free from the obliga- ======== tion of supplying maintenance to such descendant. So that a judgment will have already been given releasing the ascendant from the duty of and the ground of disherison would have already been proved; ~:j.nteic it is only in the case envisaged in Section 3? concerning ''ipso facto" release that no Court judgment exists. If the ascendant did not act at the timE;? to obtain his release then it is irrevocably presumad that the ctes,.,. cendant has been forgiven and cannot be ciis1nherited. AMBIGUOUS RESULTS This ground of disherison may give rise to slightly ambiguous results, in my opinion. The descendant, while the ascendant is alive has in this case no right to maintenance. Yet, if the ascendant dies, and the descendant has been disinherited, the latter will nevertheless acquire the right to a restricted maintenance allowance. This results from Section 665 which lays down that where the person disinherited has no other means of subsistence, those who in consequence of his disherison shall benefit by his legitim, shall be bound ta give him maintenance 11 to the extent of the fruits of the legitim". My opinion is that in the absence of an express provision to the contrary and since this last mentioned right is not restricted in any way, the dis~hert person, even in this case, should be allowed to enjoy this right (16). JUSTIFICATION My personal opinion is that this ground of disherison, which seems to be old-fashioned, should be removed, for the simple reason that the descendant in such cases does not have any intention, it is presumed, of hurting his ascendants. (16) - This may also apply in case the ascendant has obtained his release from the obligation of maintaining a descendant on any ground on which the descendant may be disinherited according to S, 660 1 according to s. 39. See below, Chapter VII, under right to maintenance. - 69 - "§.Q!-11\ M§:Yf.S," DJ§l.tJERISON ROMAN LAW: This type of disherison was known also to the Romans. The son could be excluded from succeeding as an heir. But this did not necessarily mean that the son could not acquire a generous portion of the hereditary assets: the father of an "infans" or of a 11 furiosus 11 might resort to such·a measure in order to protect the child from the dangers that might be encountered in the liquidation of the estate. The testator would nominate as heir an extraneous person to the family, burdening the inheritance with a legacy in favour of the disinherited child (L. 11, D. de lib. et post., 28, 2; 1 12, para. 2, D. de ban. liber., 38, 2; 1. 25, c, de inoff. test., 3, 28). Or, if the father had an insane or prodigal son, ha could bequeath him the necessary maintenance allowance, instituting as heirs the descendants of the disinherited son (L. 12, para. 2, D. de ban. liber. 28, 2; 1. 16, para. 2, D. de curat. fur., 27, 10). Such disherison is said to be 11 officiasa 0 or "bona mente 11 • GERMAN LAW AND OTHER FOREIGN LAWS As regards 'm"rr-German law a compulsory portion (legitim) is not as ....... a general rule subject to any restriction or gift-over; a testator may nevertheless in any case where the descendant has by insolvency or extravagant habits endangered his future income to a significant extent, protect such descendant against himself in one of two ways:1. By giving him a life interest in his share or legacy, appointing at the same time his statutory heirs as reversionary heirs or legatees; or, 2. By directing that his share or legacy shall during life be under the management of an executor. In this way the descendant would have a right to the net income, but no power of disposing/his share "inter vivas". /of In neither of these cases can the income be seized by judgment creditors so as to deprive the person entitled to it of his own maintenance in accordance with his station in life, or of his power to comply with his statutory duties as to the maintenance of dependants. The income can in no case be validly assigned. The right to income is analogous to the concept of a "protected life interest" under English law, or of an "alimentary life interest" under the law of Scotland. A similar result may also be obtained under our law, as we shall see. If the descendant permanently amends his ways bef are the testator's death such disherison becomes inoperative (B.G.B. 2338). We find this ground of disherison also in the Austrian Code. If a necessary heir is highly indebted or a prodigal and a justified apprehension arises that the compulsory portion due to him would be lost in whole or in large part to his children, the compulsory portion can be denied to him by the testator, but only upon the condition that - 70 it pass to his children (section 773). The position in Polish law is • =-,rrl:::: II' exactly the same as in Austria (Section 147). The testator in Yugo~Jyj. may disinherit on the ground of waste- ful extravagance in spending, so long as such disherisan is for the benefit of the descendants of the disinherited person and not to their prejudice, unconditionally if the descendants are below the age of sighteen years, and provided that they are unable to assure their sustenance on their own if they are above that age (Section 50). The Spanish Civil Cade says the descendant may be disinherited if he has been condemned for some crime or offence which entails civil interdiction (s. 853, 4: "Haber sido condenado par un delito que lleve consigo la pena de interdiccion civil"). Our law allows a descendant to be disinherited on the ground of prodigality. In fact Section 667 says that, "Where the person entitled to the legitim is interdicted on the ground of prodigality, or is so burdened with debts that the legitim, or at least the greater part of it would be absorbed by such debts, it shall be lawful for the testator by an express declaration to disinherit such person, and to bequeath the J.egitim to the children or descendants of such person". The disinherited person would be entitled, in case of need, to maintenance u.p to the extent of the fruits of the legitim from the persons who benefit by his disherison. But Section 773 also empowersthe testator to bequeath a pension or usufruct and to declare that such pension or usufruct be not liable to attachment under a garnishee order and even to be inalienable, wholly or in part; such declaration, if made in general terms, applies also in respect to debts incurred by the legatee after he has commenced to enjoy the legacy. My personal opinion is that the testator may avail him- self of what Section 773 provides and declare the maintenance allowance not to be subject to attachment. The testator would thus be able to disinherit the son according to Section 667 and include in such disherison a pension as provided in Section 7?3 so as ta leave him a ma.intenance allowance not only in case of need. The law in allowing this type of disherison seeks to benefit the descendants of the prodigal or heavily indebted son; it does not look at 71 - the creditors• interests. be adversely affected. If it were otherwise the grandchildren would In this way the grandchildren will actually be- nefit of their father's prodigality or financial positiona It may also prove profit wise in terms of succession duty. This type of disherison cannot be resorted to if the person concerned does not have children, or at least descendants, because the law is quite clear in this regard: these persons. the legitim he forfeits has to go to The law allows this exception to the general rule for their benefit primarily. It should be finally noted that Section 63? (1) says that those who, at the time of the testator's death ••• were not yet conceived are incapable of receiving by will. Yet then subsection (2) of that same section says that this general rule does nbt apply to the immediate children of a determinate person who is alive at the time of the testater's death. So that if X institutes his son's children 8 and C as his heirs, if the said son Y is alive at the time of x•s death, his children, 8 and C will succeed to X's inheritance, even though they are not as yet conceived and also if X's son has not in fact yet married. The law introduced this rule in order to enable the testator to omit, if he wishes, his immediate children and to leave his inheritance to the grandchildren; this rule is generally resorted to when the testator's son is heavily burdened with debts. EXISTENCE OF GROUND It is quite obvious that this ground must exist not only at the time that the will is made, but also at the time of the testator's death. This is undoubtedly so in German law, and should apply also to our law. The disherison here is not meant as a punishment, so that if the interdiction ceases, or the son 1 s financial position has meliorated, then the disherison should automatically become inoperative. be unjust to hold otherwise. It would manifestly Moreover, the testator's intention would have been a benevolent one and to uphold such disherison would bG in violation of the testator's intentions and would be contrary to public order. Even if the testator refrains from revoking it after the ground upon which it is based has ceased, it could never be upheld (17). (17) Sae Merlin, Dizionario Universals, Vol. IV, P. 517 - 518. - ?2 - IS THIS GROUND FOR DISHERISON JUSTIFIED? In the case of prodigality, I would say that it is justified. But in the other case of the son being heavily burdened with debts, is it not in a way defrauding the creditors' of their rights? The question might be resolved if we were to ask ourselves whether the interests of the descendants are higher than those of the creditors. If the disinherited person's descendants are left unprovided for, this might be detrimental to them, and so even in this case the ground may be justified. Perhaps it might be better, in certain cases, to allow the testator recourse to this type of disherison only when a higher fraction than half (say three-fourthsj of the legitim would be absorbed by debts. various circumstances. The matter really depends an If the legitim is of considerable value, it may set the child an a new financial footing, which may be better in the long run also for the descendants (18). I L L E G I T I MA T E CHI L DRE N ========================================= An illegitimate child acknowledged in the act of birth, or in any other public deed whether before or after his birth, or legitimated by a decree of the competent Court may, in the same cases and on the same grounds in and on which disherison of legitimate children may take place, be, by an express declaration of the testator vata portio 11 • deprived of the "riser- Such ground would have ta be duly proved as shall be later seen (Section 681). A legitimate child is entitled to a "legitima portici", the illsgitimate child to a "riservata portia". The law also distinguishes bet- ween the quota reserved to an illegitimate child who has been acknawledged as said and one whose filiation has been declared by a sentence of the competent Court, "percha' le sentenze le quali dichiarana la paternita• sono per lo piu' fondate su mere probabilita'" (Vol. XXV, Pt. I, P. 56). In spite of the fact that illegitimate children have an inferior right of succession when compared to legitimate children, the interpretatian of the ground for disinheriting, it is suggested, should "mutatis mutandis" be identical to that of legitimate children. (18) In spite of the fact that disherison was abrogated in French law, the father of a prodigal or heavily indebted son may avail himself of a milder form of "bona mente" disherison, so long as the child gets his legitim: See Merlin, op. cit., and the arguments . . - ?3 - OTHER GROUNDS OF DISHERISON FOUND IN OTHER CODES Section ??O of the Austrian Code says that the compulsory port ion whether of descendants or ascendants, "can be denied by a disposition of a last will if such heir has performed acts which according to articles 540 to 542, render an heir unworthy of the right to inherit," that is, if the ascendant or descendant has committed a felony against the deceased (so long as it does not appear from circumstances that the deceased has forgiven him) or if he has been guilty of a crime against the testatoras freedom of making a will. The Austrian, Polish and Hungarian Civil Codes say that a child who has been sentenced for a crime may be disinherited; in Austria if the imprisonment is for life or for twenty years (Art. ?68, 3), in Hungary if the term of imprisonment is of at least five years. The Ger- man Civil Code includes as a ground the case when the descendant has been guilty of a serious criminal offence against the testator or his spouse (B.G.8. 2333,c) and the case where the descendant makes an attempt against the life of the testator (which may also lead to unworthiness) or of his spouse or of any of his issue (B.G.B. 2333,a). So too the Code of Louisiana includes the ground where the child has attempted to take the life of either parent (s. 1621, 3): For the child to become unworthy he must at least have been convicted of an attempted homicide. It should be noted that the Spanish Civil Code says that ascendants or descendants, as the case may be, may be disinherited for these causes (that may also lead to unworthiness):- fathers who abandoned their sons, prostituted or sexually assaulted their daughters; those who have been guilty of having attempted the life of the testator, of his spouse, descendants or ascendants; those who accused the testator of a crime knowing him to be innocent; those guilty of adultery with the testator's wife; those who by threats, fraud or violence compelled the testator to make or change a will (Sections 852 - 854). The Czeckoslovakian Code says that a legal heir listed in s. 551 CC (i.e. forced heir) may be disinherited if he persistently refuses to work. This ground of disherison seems strange. But the in- stitute of disherison in socialist countries may not serve merely to - 74 - prevent offences within the family, but social well-being of the state. also · to safeguard the Polish law allows disherison of a ne- cessary heir if he has maliciously and obstinately failed to fulfill any family obligations (Art. 146, para. 1) (19). **** ** * t'fa) ********** ******** ****** **** ** * **** **. * The ·f-;llowing ground of disherison of a descendant: "se ha appostatato dalla Cattolica Religions, e non sia ritornato alla medesima prima della morte del testators" (Cadice Estense 842, i; Cadice Parmense 653, 5; Cadice Sardo 738, 1 with "Lo stesso sara' ave abbia rinunciato all religions cristiana, se questa era professata dal testators" added) is not found under our law; it runs counter to the principle of freedom of conscience, which principle is recognized by the Constitution (Vide Section 33, a). The ground for disinheriting arising from the fact that the descendant "ha tentato d'impedirgli di f'ar testamento (Cadice Estense 842, 5; Cadice Parmense 653, 4) is under our law more appropriately included as one of the grounds giving rise to unworthiness to inherit. The Code of Louisiana includes this as a good ground for disinheriting (section 1621, s). - 75 - v~ CHAPTa~ DISHERISON OF ,;2.CEf\JnANTS Section 661 says that the grounds on which ascendants may be di·sinherited are the following only;·(a) if the ascendants have entirely neglected the education of the descendant, or have without reason refused him maintenance; (b) if, where the descendant has become insane, the ascendants have abandoned him without in any manner providing for his care; (c) if the ascendants have attempted to take the life of any of their descendants; (d) if one of the ascendants has attempted to take the life of the other or has grossly outraged him. (a) NEGLECT OF DESCENDANT•s EDUCATION OR REFUSAL TO MAINTAIN This same ground was included in the Cadice ~ens (s. 843, 5) and the Cadice S~.£9 (s. 739, 1). The Cadice dells ~ §._icjl~ recognized only the second limb (s. 850, 2). The Spanish Code inclUdes the second limb (s. 854, 2), as the Germat~ Code (s.G;s:' 2334,d), and the Code of Louisiana (s. 1623, 4). The Austrian Civil Code recognizes the first limb'Of'""Bifs subsection. ... ·-=It should be pointed out that a child has to frequent school till the age of sixteen by law. 11 The Constitution itself in Section 11 in the 0eclaration of Principles" says that primary education shall be compul- sory and in State schools shall be free of charge. This being so, this ground for disherison seems to be meaningless. Are we to conclude that if education is made compulsory, then the ascendant cannot be guilty of having entirely neglected the descendant's education, or are we to say that the ascendant should, according to circumstances realize the potentialities of the descendant? In my opinion this ground should be done away with, more so since the State seems to be implementing and safeguarding this inestimable right to education. At least this seems to be the trend. Section 12 of the Constitution says:- (1) Capable and deserving students, even if without financial resources, are entitled to attain the highest grades of eciu·cation; (2) Thr~ State shall give effect to this principle by means of sci1olarships ~ of contributions to the families of students and other provi~ns or. the basis of comnetitive examinationo. Refusal of maintenance without reason constitutes a second separate ground of disherison 2nd reference is made to what has already been said as regards disherison of descendants on this ground, which mutandis" applies here too. 11 mutatis - 76 ·- (b) ABANDONMENT AS A RESULT OF DESCENDANT'S INSANITY (1) This ground was found in the Cadice delle Due Sicilie (s. 850, 3), the Cadice Sardo (?39), the Cadice Estense (B. B437"°2J. The Code of Louisiana recognizes this ground (s. 1623, 5). In the Austrian Civil CodS""it could be included under the ground where the testator in distress was left without assistance by a parent (Section 769). The ground is similar to that in which an ascendant may disinherit a descendant and reference is made thereto. ( c) ATTEMPT TO TAKE THE LIFE OF A DESCENDANT ( 2) The law says that "if the ascendants have attempted to take the life of any of their descendants" they may be disinherited. The Cadice delle Due Sicilie (s. 850, 5), the Cadice Estense (s. 843, 3) and the Cadice Sardo (s. ?39, 2) all included this ground. The Spanish (s. ?56, 2) and the German Civil Code (B.G.B. 2334) include an analogous ground. The German Civil Code says that the ascendant may be disinherited if he has attempted against the life of the testator, or of his spouse, or of any of his issue. TheSpanish Civil Code is similar, but this ground is here also included under unworthiness. So too the Code of Louisiana in Section 1623 (2) says that if the parent has attempted to take the "child's" life he may be disinherited. "ANY" DESCENDANT This ground may be availed of if the ascendant has attempted to take the life of the testator or if the ascendant is guilty of attempting to take the life of "any" of his descendants. This ground empowers the descendants to exclude, so tospeak, from the family the ascendant, at least as regards succession rights. It must be realized that viola-. tions by a father against his descendants cannot be dealt with as strictly as those committed by a son against his father. In the hierarchical order established by nature itself the son is obliged to tolerate the changes of humour in his father, the exigencies of his character, of his age, of any infirmity he might be. suffering from •. ATTEMPTED HOMICIDE To enquire into the meaning of attempted homicide, one would necessarily have to rofer to Criminal law. The ascendant must have had the specific intention of killing the oti1er or at least of putting the life of the other in manifest jeopardy. Without this specific intention there cannot be any attempt of such crime: this intent distinguishes bodily harm from an attempted homicide. (TJ (2) 1 Nov. '"'ffs, cap. 4, para• 6: "si liberis vel uno ex his in furore constitute, parentos eos curare neglexerint." Nov. 115, cap. 4, para. 2: 11 si venenis, aut maleficiis, aut alia modo parentes filiorum vitae insidiari probabuntur." - 77 - An attempted homicide exists when the ascendant, with intent to commit homicide, shall have manifested such intent by overt acts followed by the commencement of the execution of the crime. The completion of the crime must not have taken place on account of accidental circumstances independent of the will of the offender. If the crimG does not ta- ke place owing to voluntary desistance, then the ascendant cannot be said to be guilty of an attempted homicide. In the case of attempts, the law punishes not the intent, but the action, and such action cannot be punished except in so far as it has exposed the descendant to some actual danger. If the means used were absolutely inefficient or inadequate to kill, then this ground of disherison would have to be excluded, as in actual fact the descendant was in no actual danger of life. So too there is no attempt if the comple- tion of tho crime is absolutely impossible because the object of tho crime is inoxistent, as where the ascendant mistakenly shoots at a shadow thinking it to be the descendant, or where he stabs the descendant thinking him to be alive, when in fact he was already dead. What if the ascendant has been guilty of attempted murder, but the victim, contrary to the ascendant's intention happened to be a person other than a descendant? The law says attempted to take the life of any descendant, and in such a case the descendant was never in fact in any 1 actual' danger, so that the mental element alone might not be enough. My personal viev1 is that this ground should, if retained, be limited to the descendant's issue. (d) ATTEMPTED HOMICIDE OR OUTRAGE (3) The last ground upon which ascendants may be disinherited is where one of the ascendants has attempted to take the life of the other or has grossly outraged him. This ground was found in the Cadice delle Due Sicilie (s. 850, 4) the Cadice Estenso (s. 843, 4, though the second limb is absent) and the Cadice SardO""(s. 739, 3). ThG Spanish Code (s. 854, 3) and the Code of Louisiana (s. 1623, 7) include oniy the first limb • .......,,,,..... (3) Nov. 115, cap. 4, para 4 & 5: "Si contigerit autem virutn uxori suae ad intoritum aut alienationem mentis, dare venenum: aut uxorem marito vel alio modo alterumvitae alterius insidiari: talG quidem, utpote publicum crimen constitutum, secundum leges examinari, & vindictam legitimam promeri decernimus: liberis autem esse licontiam nihil in suis testamontis de facultatibus suis illi personae relinquere, quae tale scelus noscitur cornmisisse." - 78 - GROSS OUTRAGE Our law adds gross outrage of one ascendant against the other. One cannot define gross outrage beforehand; such definition is subject to the peculiarities of each case. Gross outrage is much graver and weightier than slander. The crime of outrage (oltragg) is a form of insult of special gravity (See Vol. XLII, pt. IV, P. 1310). My opinion is that the term "gross out- ragen need not conform to the definition of that term in Criminal law. In "Police v. G. Ellul" (Vol. XXXII, pt. IV, P. 763) it was said that for the crime of outrage it was necessary that the offended perty be present at the moment that the outrage occurs, in order that the insult be launched in his face. It is necessary that the offended party has in fact heard the words and comprehended the 11 actus reus'' constituting the offence. When such presence is non-existent, then there is no outrage, but there might be the crir18 of "ingurja gravi", My opinion is that the term "ascendants" may be too embracing. I understand that attempted homicide may entail unworthiness to inherit from the offended party, but the descendants should not be allowed to disinherit an ascendant on this ground, for the offence is not directed against them at all. DISHERISON CF ASCENDA.NTS IN OTHER CODES It is interesting to note that the Cadice Parmense included only disherison of descendants, but not of ascendants. Dishsrison of ascendants is rather extreme. Perhaps it would be best to do away with it altogether, or at least to allow it only when the ascendant has been guilty of a very serious offence against the son or his spouse. After all the ascendants' right to legitim is only a potential one. The son might easily get married (See s. 656 as amended) or adopt a child, thus frustrating his ascendants• expectations (4). - The Spanish Code says that the ascendant may be disinherited by his descendants if the ascendant has been deprived of his "patria potestas" either as a punishment for some crime, or as a result of separation, as long as such separation subsists (s. 854, 1). The parents under Austrian Civil law may be disinherited if they have been sentenced for a felony to imprisonment of at least twenty years (4) The Cadice Estense (s. 843, 1) and the Cadice Sardo (s. 739) included the right to disinherit for heresy. The Cadice dells Due Sicilia included this other ground: "Se·reso il figlio prigionie- ro presso i l nemico, !)On abbia p:rocurato• potendo cio' fare, di ris• cattarlo" (s. 850, 1). - ?9 - or if they constantly lead a life that is contrary to public morality (Art. 769). The German Civil Code (besides the cases of attempted hcmicide against the testator, spouse or issue, and refusal of maintenance) ineludes as a ground the fact that the parent is guilty of a serious criminal offence against the tsstator or his spouse• The Code of Louisiana includes these further grounds:- if the parent has accused the child of a capital crime, except, however, the crime of high treason; if the parent has, by any violence or force, hindered the child from mal<ing a will; if the parent has neglected to ransom the child when in captivity (Article 1623, 1,3,6). - 80 CHAPTER VI : DISHERISON OF THE SURVIVING SPOUSE It should first of all be noted that in the case of separation legally pronounced by a Court judgment, in the case of adultery or desertion without cause for two years, the guilty party forfeits in all cases his right ta the 11 riservata portio" (Section 56, 1a). In the ea- ses of excesses, crllelty, threats or gross insults (ingurja gravi), on the other hand, the Court may, according to circumstances declare forfeiture of such right, wholly or in part, or not at all. Separation may, subject to the authority of the Court, be affected by mutual consent of the parties, by means of a public deed (Section ?1). But in this case it is a moot point whether the parties may make any stipulation by which one or both forfeit or renounce to their future succession rights, as agreements on future succession are generally null and void (See Vol. XXX, Pt. II; P. 161); some judges allow parties to renounce such right, others do not. A possible solution to this problem would be to "disinherit" the guilty party in a will according to Section 673. Any rights the sur- viving spouse might have according to law, cease where the predeceased spouse has, by an express declaration in his/will deprived him/her of such right on any of the following grounds:- (/her (a) if the spouse has without reason refused maintenance to the testator; (b) if, where the testator has become insane, the spouse has abandoned him/her without in any manner providing for his/her care; (c) if, where the spouse could release the testator from prison, he/she has without reasonable ground failed to do so; (d) if the spouse has struck the testator, or has othe~ wise been guilty of cruelty towards him/her; (e) if the spouse has been guilty of grievious injury against the testator. As regards the first, the second and the third grounds, reference may be madG to \l'Jhat has already been said with reference to disherison of descendants. With regard to cruelty and "ingurja gravi" these may take a wholly different aspect in this regard. (a) CRUELTY SEPARATION AND DISHERISON In separation "a mensa et thoro", the mental element may not be so important, since for separation to be granted all that is necessary is that the spouses cannot be left to cohabit any longer. - 81 - . Cruelty for separation purposes generally has to have some element of 1 contiuy~ )Involutary conduct is well capable of disrupting a mar- riage and therefore may give rise to separation; but no one ought to be punished by disherison for involuntary acts. In studying the ope- ration of cruelty we must bear in mind that it is based on an assumption of conduct voluntarily undertaken with a realization of the relevant circumstances. A person who acts involuntarily or in a mistaken belief as to the circumstances bearing on his conduct cannot be regarded as cruel. Separation and disherison may be intimately connectedj we shall later discuss the concept and effects of "reconciliation" with regard to the law of disherison. MALTREATMENT OF CHILDREN Maltreatment of children could constitute a good ground for disinheriting, if the cruel treatment committed upon the child was for the purpose of wounding the feelings of the mother to the ree>~pros quired degree. Excessive beating of a child without reason may even be more devastating on the mother than if the beating were carried out on her. The presence of the mother need not even be necessary; in the case of sexual assaults on the daughter, th8 mother's presence would be unlikely. So too the commission of UNNATURAL OFFENCES infringes the marriage relationship and may amount to cruelty. Sodomy, on the wife, without her consent, would suffice. BIRTH CONTROL So too, if one of the spouses insists on the use of contraceptives, against the will of the other, this may amount to cruelty, depending on circumstances and moral convictions. Any form of birth control may frustrate the maternal (or paternal) instinct and may give rise ta f1) "Biex is-sevizi, u inguri jaghtu lok ghas-separazzjoni personali hemm bzonn generalrnent li hurna jkunu abitwali, jew almenu ripetuti, b'mad li jirrendu impossibili 1-1,onvivenza tal-konjugi" (Vol. XXXI, Pt. I, P. 200). 11 Per sevizie (in separation) s 1 intendono gli atti di condotta che offendono la persona e l'animo di colui cui sono diretti, al punto di generare in lui esacerbazione, dolore, e avversione profonda verso chi commette tali atti" Vol. XXXI, Pt. I, P. 200, Attard v. Attard; see also Muscat utrinque, Koll. Vol. IX, P. 274. - 82 depression and extreme anxiety. Denning, L.J., points out:- "If a man taf<es contraceptives measures against the will of his wife, whether by means of an appliance or by withdrawal before completion so as to prevent her having children, without reasonable excuse for so doing, then it is easy to infer that he does it with intent to inflict misery on her11 (Fowler v. Fowler (1952) 2 T.L.R. 143 at 148 C.A.) (2). But when licit birth control is insisted upon by the wife and her conduct is attributable to fear ot the pains and risks of childbirth, this, though unfortunate, would not be enough to disinherit her. A grave offence, in my opinion, against the other spouse would be "sterilisation", when it is not required for health purposes. Such an operation, more often then not proving permanent in its effects, when undergone without the other party's consent, and with clear foresight of the consequences, should be a just ground for disherison. In any case, a surgical operation without just cause, even though the patient consents is always illegal. NAGGING Cruelty may also take the farm of constant nagging and this may perhaps s•.1ffics for disinheriting if accompanied by the proper intention:"One knows that dropping water wears the stone. Constant nagging will become completely intolerable, and although in the course of married life you may be able to point to no single instance which could possibly be described as, in common parlance, a 'row', yet nagging may be of such a kind and so constant, that it endangers the health of the spouse on whom it is inflicted" (per Collins, J., in Atkins Case (1942) 2 All E.R. 63?). In Atkins Case the nagging often lasted until three o'clock in the morning! It may be the example "par excellence" of mental cruelty. Yet it cannot be punished if the aim behind it is the husband's amendment of his faults. On the other hand, sulking and refusing to talk to the wife, may, if beyond reason and carried to gross extremes, be cruel. (2) It is doubtful whether refusal to intercourse would be enough. In England it was re·taiaed insufficient. But Denning, L.J., said:- "The wilful and unjustifiable refusal of sexual intercourse is destructive of marriage, more destructive perhaps than anything else. Just as normal sexual intercourse is the natural bond of' marriage, so the wilful refusal of it causes a marriage to disintegrate" (Kalsefsky case (1951) P. 38 at 47 C.A.). - 83 - our Courts had said:"Illi, dimostrat li 1-kondotta hazina mhix kompriza filkelma •ingurja• ghall-finijiet tac-citat art. ma hemmx lok ghattfittix ta' 1-interpretazzjoni tas-sinifikat tal-kelma 'ingurja' skond 1-applikazzjonijiet maghmula f'materja ta' separazzjoni personali. Is-separazzjoni personali ma ghandha x'taqsam xejn mad-dizeredazzjoni; ir-rapporti li jintercedu bejn il-mizzewgin hurna ben diversi minn dawk li jintercedu bejn il-genituri jew axxendenti ohra u l~uied jew dixxendenti ohra; u t-taghlim moghti f'kaz mhux dejjern jista' jiegi b'sikurezza applikat ghal kaz iehor ghal kollox divers. Ghall-kaz in kwistjoni certament ma tistax tigi applikata d-dottrina in materja ta' separazzjoni personali, fejn wished isib kazijiet meta fihom gie ritenut li 1-kondotta haziha jew irnmorali ta' wiehed mill-konjugi ikkostituit ingurja lill-konjugi 1-iehor; ghaliex, kif gie dimostrat dana mhux konformi ghad-disposizzjonijiet tal-ligi in materja ta' dizeredazzjoni" (Vol. 33, pt. II, P. 357). This is quite true; of descendants. 11 but here we are not dealing with disherison It is felt that that the interpretation of cruelty and ingurja gravi" need not necessarily coincide with that adopted in sepa- ration, because for our purposes the offender's intention is of para- S~in mount importance. But as we shall see presently, in Germany, Austria, and other countries the same grounds that give rise to separation may be used to disinherit: separation and so that there is an intimate link between disheron~ INTIMATE FRIENDSHIP with a person of the opposite sex might well be a good ground for separation and for disinheriting, in my opinion:- * "Huwa minnu li gie deciz (ara >OW, II, 396) illi amoreggiamenti ta' mara mizzewga li ma jammontawx ghall-adulter ju ma jistghux jidhlu taht 1-edba mill-kawzalijiet indikati fl-art. 47 u lanqas taht 1-ingurji gravi hemm specifikati; imma dina 1-Qorti, bir-rispett kollu lejn dak il-gudikat, thoss li ma tistax taqbel mieghu, ghar-raguni illi b'hekk jigu kanonizzati certi affarijiet, rapporti, immoralitajiet antilegali, li jiddisturbaw il-paci talfamilji 'impunement'; jekk 1-att jimporta skandlu pubbliku jsir 1 palam' b'certa notorieta' u min huwa interessat jopponi ruhu ghalih, ir-reiterazzjoni tieghu hija 1 ingurja gravi'. Del resto, hekk gie deciz rninn dawn 1-istess Qrati f •kaz analogu (Volum III, 461) fejn intqal illi 'l'introdurre nella casa coniugale una persona di sesso diverso all'insaputa e non ostante il divieto d3l marito, e sotto circostanze le quali fanno ragionevolmente sospettare che la medesima abbia disprezzato i.debiti riguardi verso la fede coniugale, e che senza alcun dubbio la detta convenuta col suo procedere abbia commesso una grave inguria al detto marito e quindi ha cagionato un giusto e grave dolore all'animo del medesimo ••• n (See also Vol. XXXII, Pt. II, P. 118).*{Vol. XXXIII, Pt. r, P. 134). In Italy the following acts have been held to amount to a "grave inguria" sufficient for separation (and in my opinion for disinheriting in appropriate cases):- non-fulfillment by the husband of the conju- gal debt (Cass. 19. Nov., 1954 1 n. 4272 Giust. Civ., 1955, I, 1159); - 84 any sentimental relationship even if platonic (Cass., 14 Oct., 1960, n. 2?38 Giur. it. , 1961 , I, i, 1088) ; not being a virgin before marria- ge (cass., 18 Jul, 1955, n. 2311 Giur. it., 1956, I, i, 336); constant dislike towards the spouse's relatives (Cass., 7 Aug. 1952, n. 2584 Dir. Eccl., 1953, II, 188); the habit of blaspheming (App. Firenze, 24 June 1958 Giur. Tosc•, 1958, 254); not defending a wife from a person making advances towards her (App. Genova, 20 Aug. 1949 voce ult. cit •• n. 64); the wife's use of her own surname (Cass., 13 July 1961, n. 1632 Faro it., 1961• I, 1065). A grievious injury' would exist if the husband for no reason calls his wife a "prostitute" in public or in front of the children. The insult is even more serious if made in writing, as when the husband writes that he prefers death, even a violent with her; on~ rather than to live it would be graver if addressed to a third party. In Italy it was held that if the parties agree to celebrate their marriage in Church after celebrating civil marriage, and one later refuses to celebrate the former, this would constitute a "grave inguria". So too if the husband refuses to baptise the child born of a marriage "celebrated in Church". In England, the latter behaviour was held not to be cruel. Finally, one may note that threats are included as a good ground for separation, but not for disinheriting; excessive threats may none- theless amount to cruelty or "grave inguria". DISHERISON OF THE SURVIVING SPOUSE IN OTHER CODES Article 2335 of the German Civil Code says that the testator may disinherit the spouse who is guilty of any "matrimonial offence" (3) which would entitle the testator to claim a divorce (B.G.B. 23332337). The grounds are;- (4) ~: 1l Adultery, bigamy and sodomy (B.G.8 0 1566); Attempts against the testator's life (B.G.B. 1566); Wilful desertion (B.G.B. 156?, 1). Either of the following facts is included under wl.lful desertion:- i) intentional disobedience to an order for the restitution of the conjugal community for more than a year contrary to the wishes of the other spouse; ii) intentional absence from the matrimonial home against the wishes of the other, for more than a year in circumstances under which personal service of any judicial process is impossible (B.G.B. 1567, 2). (4) Any facts, by which the marital relationship owing to any grave breach of marital duty or dishonourable or immoral conduct on the spouse's part, is disturbed to such an extent that the testator cannot fairly be expected to continue cohabiting (B.G.B. 1568). •(3_,.)__T_h_e__s-po-use under Hungarian law may be disinherited for serious .. - 85 - The right to obtain a is barred by condonation; divorce or to disinherit on any ground connivance in the act of adu~tery, bigamy or sodomy bars the right (B.G.B. 1565, 2; 1570-1573). ----- In Austrian law, the spouse is not entitled to a compulsory portion, but as long as he or she does not remarry, he or she is entitled ta decent support, unless this support (or maintenance) is provided by:his or her intestate portion or by another mode of maintenance set forth in an agreement for a last will. set forth in Article 759 e~st, the surviving spouse has no claim for maintenance from the estate. by the law itself (s. 796). If, however, the conditions The disherison in this case is proclaimed Section 759 says that a spouse divorced be- cause of his or her fault has no intestate inheritance right nor any claim to pre-legacy. The intestate inheritance right and the legal· pre-legacy are also denied to a surviving spouse where the deceased had at the time of his death:: the right to sue for divorce er annulment of the marriage pursuant to the iaw of July 6, 1938 (Reichs Gazette P. 807) and had already filed a complaint, provided that the surviving spouse would be considered at fault if the divorce or annulment action would have been determined. In Spain the surviving spouse may be disinherited if he or she has teen condemned for attempted homicide of the other spouse, his or her descendants or ascendants; testator of a serious crime; if he or she has falsely accused the if he or she has attempted by threats, fraud or violence to cause the testator to make or change a will. These grounds are also included under unworthiness to inherit 2,3,6). (s. 756, Furthermore, the surviving spouse may be disinherited for the same causes that may give rise to separation, that is:~1) For adultery; t2J For ill-treatment, grievi'JUS insults or desertion from the conjugal home; (3) If violence was exercised by one spouse on the other for forcing him or iier to change his or her religion; (4) If the husband has ,proposed to prostitute his wife; (5) If the husband or wife has attempted to corrupt the (4) violations of conjugal obligations (in a general sense). Under Polish law the spouse may be disinherited for grounds which would constitute good grounds for divorce; the testator may disinherit even after the expiration of the time-limit for the institution of divorce proceedings (Art. 146, para. 2). The grounds for divorce seem to have be~n abrogated in Gernan law; but presumably they still are good grounds for separation and disherison. - 86 sons or to prostitute the daughters, or if ons of them connived in their corruption or prostitution; (6) If one of the spouses has been sentenced to "reclusion mayor". (Section 105). So too the husband may be disinherited for the same causes, already mentioned, where he has lost his "patria potestas" (So 16CJ.). Further grounds of disherison are if the spouse has denied maintenance to the children or to the other spouse or if he or she has attempted to take the life of the testator, unless there has been reconciliation between them. The causes that may give rise to separation (i.e. 1 - 6) may be availed of for disinheriting onlt if the spouses do not live any longer in the same dwelling house (Section 855) (5). (5) The Cadice Estense (So 845) said:.. "Il conjuge che ha maltrattato l'altro conjuge, che ha tenuta vita riprovevole, e che per fatto e colpa propria, ha data causa alla separazione di corpo, se questa sia continuata sino alla morte dell 1 altro conjuge, puo' dal medesimo privarsi del favore degli ali~ent. •• " The Code de Rohan, Lib. 4°, cap. 1 , LII said that the widow, who after the testator's death, led a scandalous and immoral life, lost all she had acquired from the testator and this passed to the children or her heirs. If she desisted from her blameworthy behaviour, then she was entitled to maintenance (LIII). CHL\PTER VII: CONDITIONS FOR VALIDITY, EFFECTS AND REVOCATION OF A DISINHERITANCE CLAUSE The testator cannot, under our law, disinherit persons entitled to a legitim or reserved portion over his estate or inheritance by merely passing them over in silence, even though a just cause for disinheriting may exist. If he does pass them over, they would still be entitled to their legitim or reserved portion. Section 784 further- more says that, "Any testamentary disposition, whether by universal or singular title, made by a person who, at the date of the making of the will, had no children or other descendants, or was not aware that he had any children or other descendants, shall "ipso iure" be revoked, if there is found to exist or there is born after the will any legitimate child or descendant of the testator, even though posthumous, or a child or descendant legitimated by a subsequent marriage or adoptive. The same rule shall apply, even though the child or descendant of the testator shall have already been conceived at the time of the making of the will, or, in the case of a legitimated child even though such chi~ shall have already been acknowledged before the will, and only afterwards legitimated." A disherisbn may be ju~t; because no reason is assigned. but pretermission is usually unjust, The Austrian Civil Code in opposition to our law and other laws, allows an "implied" disherison. Article 782 in fact provides that if the heir can prove that a necessary heir passed over in silence has been guilty of one of the grounds for disinheritance, such omission is to be considered as an implied legal disinheritance (See also Section 771). SPECIFIC DECLARATION The disherison to be valid under our law has first of all to be ma.de by 11 a specific declaration of the testator". forms to Roman law. This condition con- Oisherison is a serious matter and cannot be ad- mitted without its being expressly made by the testator. A punishment is never inflictsLi on mere f:'J:"·asumptions • It would not even be enough for the testator to say:··· "I institute Ticius as my universal heir, as my son Gaius has unreasonably denied me maintenance when I was in need." By so doing, the testator would be manifesting a motive, for which he could disinherit his son, but in actual fact he does not disinherit him. It is imperative that his declaration be precise, deli- - 88 - berate, certain and clearly manifested so as not to leave the least shadow of a doubt as to what h i s intention was. If the disposition gives room for doubt, it can never be upheld, because we are here dealing with a punitive measure and the person punishing is a near relative: ve the courage to declare: "in dubio pro reo". The testator must ha- "I disinherit ••• " otherwise, any other dec- laration may give rise to possible interpretations and contradictions. The person disinherited has furthermore to be precisely specified. The Code of Louisiana says, "The disinherison must be made by name and expressly, and for a just cause, otherwise it is null" (Section 1619). All this provided a psychological protection to the offending party, because the testator will undoubtedly find it much more difficult to express his intention, and he is consequently bound to reconsider the matter over and over again, before finally resorting to disinheriting. If he has a vacillating mind on the matter he will probably forget the whole matter and let it die a natural death. JUST CAUSE A further condition for validity is that the cause of disherison be one expressly mentioned by the law. tioned. The Code of Louisiana (s. say this in an express provision. necessary: This point has already been men- 1620) and the Spanish Code (s. 848) But such a provision is not strictly the law is quite clear. In this regard reference could be made to the judgment found in Volume 29, Part II, Page 880 (G. Bartolo v. A. Bartolo et" • ) CAUSE STATED A third condition is that the ground of disherison must be "stated in the will". If the ground is not "stated ••• tho person disinherited shall only be entiL'.ed to th8 legitim" (Section 666). The judgment of the testator must have a mo"_;ivation behind it for inflicti:ig the punishment of disherison, The di.sherison cannot succeed, unless the ground is determinate, and it is natural that it should be declared. Need the g:c;Jund be also explained in the will? says "imfissra fi.t-testment"; The Maltese text the 1868 Ordinance said "spiegata" 320), as the Cadice dells Due Sicilie (s. 848), the Cadice Sardo (s. (s. 737) - 89 - and the Cadice Estense (s. 841). According to the Maltese text it seems that the ground has to be explained in the will. In fact it might be much better to do so, especially when the testator is near to death and knows of this latter fact; as we shall see la-t::er on, the will might provide a possible source of evidence. It might not be enough, strictly speaking, to say that the disinherited person was guilty of cruelty; sisted of: the testator should declare what such cruelty con- this is better for the disinherited person himself when the ground has to be proved against him, because the person taking advantage of the disherison would have to prove "the" ground stated in the will, and not another ground, even if _ much more serious. Though some, not without reason, hold that there might be reasons where it would be better not to go into too much detail as to the facts giving rise to the cause of disherison. Notary J. Vella Galea, LL.D., testified in George Muscat v. Antonio Muscat et. (17. 7. 1967, ceduta) that, Jiena tajt hafna importanza lill-klawsola in kwistjoni u jiena ma nizziltx il-fatti lili rakkontati li jammontaw ghal kawza generika indikata fit-testment ghaliex kont naf illi ttestment ghada pitghada jkun accessibbli ghal pubbliku u ms. ridtx illi jkun hemm dan. ic-certifikat hazin kontra 1-istess disereditat gha.liex ic-cirkostanzi kienu verament gravi". 11 BURDEN OF PROOF The final condition for a successful disherison is that it be proved. The burden of proving a given fact normally rests on the per- son who alleges its existence or inexistence: bit ei qui dicit et non ei qui negat". "onus probandi incum- He who alleges a fact does so in his own interest to obtain a change in the actual juridical condition which he intends to obtain. It is the plaintiff who must prove the facts, since from what he alleges he hopes to derive a change in the actual juridical condition. If he does not succeed, then the defendant should !Je discharged "ab observantia judicii" and from the demand: 11 actore non probante reus absolvitur" (See Garuana-Ganado Notes on Civil Procedurel P. 13?5). Chiovenda explains the principle that the burden of proof lies on the plaintiff thus:- - 90 - "What nee:! be proved are the specific particular f'acts, known also as constitutive facts, and not the constant juridical facts. The absence of a normal fact is an exception and the person interested must assert it and prove it. And, therefore, it is in the relation between normality and abnormality, between the rule and the exception, that the principle and the theorico-practical criterion governing the division of the •onus probandi• lies ••• " (Principii di Diritto Processuale Civils, 789; quoted in Caruana-Ganado Notes on Civil Procedure). But in the case of disherison the general rule that the plaintiff has to prove what he alleges does not apply. In the case of disherison the burden of proof is inverted, as Section 662 says:"The ground of disherison must be proved by the party alleging such disherison" and goes on to say that where more grounds than one are stated in the will, the proof of one is sufficient. "Il-ligi, anki kontra 1-volonta' tat-testatur, irrizervat lil certi persuni sehem mill-wirt ta 1 1-istess testatur; biex kwindi t-testatur jista• b'disposizzjoni testamentarja jidderoga ghal-ligi 1 u jhassar 1-effikacja tar-riservi li 1-ligi ghamlet anki f'kaz ta' preterizzjoni mill-parti tat-testatur, hemm bzonn illi tkun tezisti kawza minn dawk enumerati mil-ligi u hemm bzonn li tigi soddisfacentement provata mill-eredi. Illigi tippermetti d-deroga ghad-disposizzionijiet taghha dwar il-legittima f 1kazi determinati, hemm bzonn kwindi li dawk ilkazi jigu pruvati." (Vol. 29, pt. II, P. 880). The ground need be proved only if the disinherited person contests the disherison. If he knows that he has been justly disinherit- ed, and that evidence of his guilt exists, as when he gravely insulted the testator by means of a letter, he may prefer to hush up the matter. The Spanish Code states that, "La prueba de ser cierta la causa de la Disherison differs from unworthiness in desheredacion correspondera a los herederos del testador si el desheredado la negare" (s. 6E:'O)~ this respect, for the unworthy "potest capers sed non retinere", whilst the disinherited person cannot acquir& unless the ground is not proved, "non est servanda 11 a alleging the unworl~hies Also thn plaintiff in unworthiness is the person er the successor. whilst in disherison the plaintiff is the pdrnon ch2J.lenging the disherison. This is so because we have rightly f:>l:l.owec1 i.:!:e system adopted by Justinian:" ••• il-prova, kwindi, tinsab mixhuta fuq il-konvenuti, bhala erecli ta 1 Antonio Bartolo, u huma ghandhom jippruvaw fiJ ...:r;1·-\~mt tal-attur, li qieghed jikkontesta 1-kawza taddize:mdazzjoni indikata fit-testment. ••" (Vol. 29 1 Pt. II, P. 880). - 91 - This inversion of the burden of proof is in conformity with the principle that an accused person is presumed innocent until his guilt is proved. It would have been most unfair to have placed the burden of proof on the disinherited person by making him prove that the disherison is unjust. Despite the testator's declaration he is therefore presum- ed to be innocent, until proof to the contrary. But perhaps it would have been fairer to let the disinherited person retain his right to the legitim or reserved portion, and, if the heir chases, he may institute an action to oust the guilty person of his right by proving the ground of disherison: in this way the person disinherited would never be pu- nished unless his guilt is proved. Baudry says, "sotto la garanzia della legge ed il controllo del giudice si esercita dunque il diritto che si riconosce al testators di privare i suoi legittimari della loro legittima" (Baudry-Lacantinerie, Vol. I, 676). Disherison is a matter within the discretion of the tes- tator and if he has good cause and adopts the correct procedure, the Court has no jurisdiction to set aside the disherison. "Illi jekk dawn il-fatti rakkontati fit-testment huma veri, ma jistax ikun hemrn dubju illi huma jaqghu taht id-disposizzjoni ta' 1-art. (660) ••• Illi 1-kwistjoni hija kwindi impernjata fuq ic-cirkustanza jekk il-fatti hemrnhekk allegati humiex veri ossija le ••• Fin-Novella nghad:- 1 Ut praetor eas nemini liceat, eas nominatim praesenti legs comprehendimus. Et scripti haeredes nominatim vel nominatas causas vel unam ex his veram esse monstraverint." L-artikolu 848 tal-Kodici Siciljan irriproduca sostanzjalment id-disposizzjonijiet tan-Novella" (Vol. 29, Pt. II, P. 880). The ground of disherison must not only be proved to have existed, but it must also be proved to have existed at the date the testator made the declaration. der our law. This is so under German law, and should be so also un- If at the tim8 of the testator's disposition the ground did not exist, t:ic)'l there 1;.:;•.1ld have been no 0 11 justa causa" for the dishe- rison, and such d:i..suositi·:., would naturally have to be held invalid, even though the hf-''.J'-lnd :11l1"rt: have arisen subsequently ( 1). Further- more, the person alleging the disherison has to prove the ground stated (1 J In F'ian'cu t;;:ere was t~1e interesting case where the father had for-bidder. ·c: .c child from marrying a particular person, disinheriting the chi~'-•) if it did. Parliament confirmed the "Chatelet" judgment holding the clause valid (See Merlin, Dizianario, Vol. IV, P. 510). This could not be held to be valid under our law: see Page 68, on opposition to marriage. See also Section 657 Civ. Code. - 92 in the will, and not one that is not mentioned, even if much more serious. STANDARD OF PROOF As the institute of disherison is meant to punish and is of an odious nature, the ground lias to be proved beyond reasonable doubt; tie evidence has to lead to a clear and conclusive conviction of guilt, and in case of any reasonable doubt, this will benefit the disinherited person. In "Kan. Dekan Francesco Camilleri et. v. Salvina Camilleri" (Vol. XXXIII, Pt. I, P. 73) dealing with unworthiness to inherit (which may be applied to disherison), it was said:"Konsegwentement hija dottrina u gurisprudenza wisq akkreditata u gusta, illi, f 1 materja simili 1-provi ghandhom ikunu cari u konkludenti. 11 This is in conformity with the principle "interpretations legum poenae molliendae sunt potius quam asperandae" (L. 42, Dig. XLVIII, 19) and, also "in re dubia benigniorem interpretationem sequi non minus justius est quam tutius" (L. 192, para. 1, Dig. L. 17). Besides this, the grounds have to be restrictively interpreted in favour of the accused:"Illi jista 1 jinghad illi 1-interpretazzjoni ghandha tkun restrittiva kontra min irid iwaqqa d·-dizeredazzjoni, ghaliex ghandha tiegi rispettata 1-vdlonta• tat-testatur. Il-verita' hija illi 1-interpretazzjoni ghandha tkun restrittiva favur, u mhux kontrs., min qieghed jimpunja d-dizeredazzjoni, ghaliex id-dizeredazzjoni, kif jghid il-Merlin (Voce Diseredazione, P. 824) hija haga odjuza" (Vol. 29, rt. II, P. 880). WHO IS TO PROVE? The Spanish Civil Code says that "La prueba de ser cierta la causa de la desheredacion correspondera a los herederos del testador si el desheredado la negare" that the 11 (s. 850). The Code of Louisiana lays down testator must express in the will for what reasons he disin- herited his forced heirs or any of them, and the other heirs of the testator are moreover oblige-! to prove the facts on which the disherison is founded; otherwise i·:; is null" (Art. 1624). Our law does not use he need not be an heir ••• the defendant might well be the disinherited the term heir, but says "the party alleging" such disherison, so that person's children who will inherit in his stead. 93 - WHAT HAPPENS IF THE GROUND IS UNPROVED Section 666 of our law says that "where the ground of disherison ••• is not proved, the person disinherited shall only be entitled to the legitim". In "Giovanni Bartolo v. Antonio Bartolo et", Judge Harding had said:"Illi una volta ma hemmx ebda fatt li jammonta ghal motiv ta' dizeredazzjoni, allura d-dizeredazzjoni ta 1 1-attur ••• ma hix sostenibili, u 1-attur ghandu d-dritt ghal-legittima. Skond id-Dritt ta' 1-Imperatur Giustiniano Novella 115, f'kaz ta' insostenibilita' tad-dizeredazioni 1-legittimariu kellu ddritt tal·- 1 Querela Nullitatis ex Novo Jure', li biha kien iwaqqa 1-istituzioni ta' 1-eredi. Fid-Oritt Malti 1-legittimariu ma ghandux dana d-dritt, imma jiehu biss il-legittima." The Spanish Civil Code provides that, "La desheredacion hecha sin expression de oausa, o por causa cuya certezza, si fuere contradicha, no se probare, o que ne sea una de las senalada en los ••• articulos, anulara la institucion de heredero en cuanto perjudique al desheredado; pero valdran los legados, mayoras u demas disposiciones testamentarias en lo que no perjudiquen a dicha legitima 11 (S. 851). So that an unjust or unproved ground annuls the institution of heir, but dispositiorsby singular title (legacies) are respected so long as they are not prejudicial to the person entitled to the legitim. Pretermission of the surviving spouse, however, will not annul the institution of heir in the will. If the persons entitled to the legitim are passed over the institution of heir in the will will be annulled1 but if they die before the testator, then such institution will be sffective (s. 814). DYING DECLARATION The testamentary disposition containing the disherison, it may be argued, may be produced in evidence according to Sections 609 and 610 of the Code of Organization and Civil Procedure (See Vol. 29, pt. II, P. 880). The testamentary disposition may also be admissable as evidence when made by any person who is about to die, and who knows of the nearness of death. Such a dying declaration is to be distinguished from a dying deposition made by a seriously ill person taken on oath by a Magistrate. The Judge must be satissfied that, at.the time the declaration was made the death of the declarant, the testator, was near and that - 94 - the testator had abandoned all hope of living, even though his doctor might not have given up hope completely. Even if he survives for a few days afterwards, the declaration would nevertheless be valid. 11 In order to ascertain the state of the declarant's mind, it (is) not necessary that the consciousness of impending death be made to appear from the declaration itself, but all the circumstances of the case may be resorted to for that purpose" (Rex v. Muscat, 23. 7. 42: Recent Criminal Cases Annotated, Harding, s. 13, Note 21). Kenny says, "The admission of such declarations is usually justified on the ground that the religious awe inspired by the approach of death is deemed fully equal to the sanction of any judicial oath" (Kenny, "Outlines of Criminal Law", P. 525, n. 606). He then quotes Coleridge, J., who said:- 11 They are exception to all rule; but they always produce the greatest effect". In 11 G. Bartolo v. Ant. Bartolo et.", Judge W. Harding had said:- "Jista' jinghad illi d-dikjarazzjoni tat-testatur il-lum mejjet, u kwindi improducibili bhala xhud, ghandha jkollha 1valur taghha in farza ta• 1-artikoli 609 u 610 tal-Procedura Civili. Pero' il-valur ta 1 dik id-clikjarazzjoni jinsab distrutt bl-istess provi indikati mit-testatur fit-testment fuq imsernmi. Lanqas jista' jinghad (in the circumstances of this particular case) li dik id-dikjarazzjoni ghandu jkollha 1-valur li dottrinalment gie dejjem rikonoxxut ghar-rigward ta• dikjarazzjoni li bniedem jaghmel fl-ahhar mumenti ta' hajtu, meta s-solsnnita' tal-mument tirrendi improbabili 1-falsita•, meta, kif qal Chief Justice Eyre, citat mill-Powell (On Evidence, P. 83), "the party is at the point of death, when every hope of this world is gone, when every motive to falsehood is silenced, and when the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal ta that which is imposed by .a positive oath administered in a Court of Justice". It-testment difatti sar f'Awwissu tal-1931, mentri Bartolo miet f'Novembru tal-1932". Cav!PUTING THE LEGITIM A child who has been disinherited is taken into account whether he is succeeded to "jure rappresentationis" or not in counting number of children for computing the legitim. the The descendants, if any, who succeed instead of the disinherited child are counted as one instead of their father whom they represent. If there are no such descendants er they are not entitled to succeed "jure rappresentationis 11 , the child who has been disinherited is nevertheless taken into account, and his share will go to increase that of the others who will then benefit by his disherison. In this way, disherison will not operate generally so as to enable the testator to increase the disposable portion (CaruanaGanado Notes on Civil law, P. 997). The testator increases the dispo- - 95 - sable portion when there exists only one child, and nc _::!:;her persons entitled to e. legitim and this only child: hs.\/ing no .• cpildren, is di- sinherited3 This was not so in the Cadice dells Due Sicilia which said that, Colui che e' stato guistamente diredato, si terra come non esistente; e la sua persona non sara messa a calcolo nel ripartirsi la quota di riserva, o sia legittima, dovuta agli altri figli 11 (s. 852). 11 So too the Austrian Civil Code says that a person who has "been lawfully disinherited by the testator ••• is considered not to exist when the compulsory portion is computed" (S. ?67). - OISHERISON IS TO BE MADE IN A WILL If the testator merely limits himself to disinheriting a child or descendant, he would not, it might be argued, be really "disposing" of his property, since the disinherited person's share still forms part of the non-disposable portion. son has to be made in a "will". be ma.de in a will; Section 659 says that the disheri- Even in Roman law a disherison had to a codicil was not enough. Pothier says French law imposed rio form in which a disherison was to be tnade: rial act was therefore enough. a simple nota- A will is an instrument by which the testator 1 according to the rules laid down by dispase_§,, for the la~ time after his death of the whole or of a part of his property. A will may contain either dispositions by universal title or merely by singular title (See Sections 625 and 626). This could be tricky and may lead to ineffective disherisons (2). Because if the testator merely limits himself to disinheriting a person, it may well be argued that there is, in fact, no actual "disposing" of property and no true will, according to law, but just a public deed, which would not be enough. Witness that the law says that an unworthy person may· be rehabilitated by a will or by a 1 public deed• : in this latter case no doubt could arise, as the law provides that a public deed would suffice. To play it safe, in myopinian, it is much better to include at least a disposition by singular title, even if of insignificant value, (2) One could make reference to what tiras said in Chapter II regarding French and Italian doctrine on the matter of disherison. - 96 - so as to make the public deed fall under the law's definition of a "will", and to avoid possible invalidity on this point (3), The Code of Louisiana, for instance, does not say that a disherison has to be made in a will, but it must be made in one of ths "forms" prescribed for testaments \Art. 1618). REPRESENTATION Representation operates so as to put the representative in the place, degree and rights of the person represented resentation is allowed it is made "per stirpes" (s. (s. 839). 843, 1); Where repin other words, each stock representing the disinherited child succeeds to what such child would have received. Professor Fulci, like Pothier, says that it is "una finzione della legge che facendo entrare i discendenti nel luogo dell 1 ascendente, attribuisce ai primi i diritti che sarebbero spettati all 1 ultimo, se non fosse premorto o indegno o assents, sulla successione dell'ascendente". Such right of representation is said to be based on the deceased's presumed intention, yet it may apply despite his opposition. The person representing is a direct heir of the de- ceased and does not succeed 11 jure transmisso", in the.sense that "le eccezioni personali che potrebbero sollevarsi contra il rappresentata per escluderlo della successions, non lo taccano punto" (See Borsari, ucodice Civile Italiano", Vol. III, pt. I, P. 105). Vitali says, "Il rapporto ••• e• circoscritto frail rappresentante e il 1 de cujus 1 , nel senso che le condizioni di successibilita•, i diritti, gli oneri ••• sono limitati fra il rappresentato e il rappresentante a quelli stessi che sarebbero cosi tra quella e il 'de cujus', se gli avesse sopravvisuto11 (Vitali, "Delle Successioni", Vol. V, P. 259). It is true that the representative succeeds to the rights of the represented person, but it is also true that "secundum natura est commoda cujusque rei cum sequi, quern sequentur incommoda"; (3) duties Rre correlative to rights. r"n"czechoslovakia, a disherison must necessarily be made in a 11 document" containing all the essentials of a will on pain of nullity. In Poland the testator may by a "negative will" deprive a relative or spouse of their succession rights "ab intestate" without the appointment of another heir. ., 97 Writers discussed wl1ether a pers:in who v:a.s disinhe:.:"ited couJ.d ba represented by his descendants. It was felt that if the disinherited person were alive at the disinhe:;:-·ited person~ s death, he could not be represented, not because he was disinherited, but mainly because he we.s alive. rep~· But if·he predeceased the testator, could not the child:car: resent him? Some held that even if the disinherited person had surviv- ed he could not be heir, and therefore there was no one to represent. other legal writers held less severe views. Disherison is of a personal nature, they argued 1 and with the disinherited person's death the dis·~ herison is extinguished, his children being subrogated in their father's position (4). Our law has accepted this latter view and Section 664 lays down that where the person disinherited predeceases the testator, the disherison shall not prejudice the rights of his descendcnts. If the children are allowed to succeed in their fatheras stead, thj_s may in fact diminish the deterrent force of the law of disherison to prevent abuses, since the descendant knows that in any case his childre:i will take his share. Domat is of the opinion that as disherison is a punishment it must necessarily be transmitted also to the otherwise it would be useless. chi~ren» One cannot understand how the disherisan can be effective if the children are still going to benefit. The disin- herited person would be entitled to the benefits of succession:"L'unione naturals che vi ha fra padre e figli, e 1 tale, ~he nan puo 1 immaginarsi come il delitto possa essere infruttuoso a lui quEtndo profitta attualmente ai suoi figli" (Lebrun 1 Delle Successioni, lib. III, cap .. IX, n. X). Lebrun even goes so far as to say, that by allowing the children of the disinherited person to succeed in his stead, stimulates further crimes against the testator; but this is going too far. Pothier disagrees vigorously, holding that the disinherited person's children should no-c be punished for their father's fault .. French Civil Cade with r·eg"~.'d The to the law of unworthiness says, "Les enfants da l'indigne, venant a la succession de leur chef 1 et sans le s~cou de la representation, ne sont pas esCluS per re=faut da leur pere ... •" (Art. 730). ~ (4) Pothier, Trattato della successiani, cap. II, sect. I, para. 2; 0 Merlin, Repert., v Represent., sect. IV, para. 3, n. 8 & 9; Merlin says 11 la collera del padre degenererebbe in crudelta 1 se spingesse nella posterita 1 del figlio, la vendetta di un ingiuria es-~ 0 piata con la morte di costui 11 ( v Dis., P.. 513) ; Someren, De - 98 - Our law has followed the more equitable principle that the children ought not to be punished for their father 1 s faults. Section 663 says that if the person (not descendant) disinherited has children or other descendants, the legitim of which such person has been deprived shall be due to them, ascendant? apply. But does this rule apply to the disherison of an As regards ascendants, the rule of representation does not It can therefore be argued that Article 663 is applicable only to cases in which representation applies. Alternatively, it may be ar- 2!, they would gued that the ulterior descendants take the legitim only have had a legitim if the disinherited person were dead. It might even be further argued that the descendants of any "person"entitled to the legitim, even if he is an ascendant acquire the legitim in his stead; in this way the collaterals would acquire a right over their brother's estate? Could it not be said that the descendants take 11 jure proprio 11 and not "jure rappresentationis" in v:i.rtue of what Section 663 provides? Merlin is of the opinion that if the father has only one child, whom he disinherits, the disir:herited person's children ought to take "jure proprio" (Merlin, op. cit, v0 Diseredazione, P. 512). The same principle that the children acquire instead of the disinherited person is followed by the German Code (B.G.8. 2339 - 2344) and the Spanish Code (s. Cadice Parmense (S .. 656). 857). So too the Cadice Sardo (s. 741) and the The Cadice dells Due Sicilie did not allow the children or descerdants to represent their disinherited father, who was deemed not to exist. It is only "se il figlio ••• premuore al padre" that "la diredazione ron pregiudica i diritti dei discendenti del madesimo"; this appJ.ied also for the mother or any other ascendant (s. 853). The Civil Code of Louisiana also follows this latter principle enunciated by the Cadice dells Due Sicilie and says that, "When a person has been disinherited by his father or mother, or excluded from his succession for unworthiness, his children can not represent him in the succession of their grandfather or other ascendants, if he is alive at the time of the opening of succession, but they can represent him if he died before" (S. 901). Section 899 says that 11 Persons deceased only can be represented; persons alive can not". represent., cap. XIV, n. 9 & 10: P. 105. Quoted in Borsari 1 op. cit., - 99 - SGction 844 of our law says that 11 representation" cannot take place in regard to persons who are alive, but only in regard to persons who are dead, or incapable of succeeding, or who ••• in virtue of a judgment are presumed dead. Disinherited persons are not mentioned directly, but may presumably be included under the general term of "incapable"* (See Borsari, op. cit., P. 105); this is not strictly correct, for disherison does not render the guilty person "incapable" of succeeding in the strict meaning of that term; this may provide a further argu- ment to the view that descendants of the disinherited person take the legitim in virtue of Section 663, not in virtue of the right of representation. The Spanish Code is more correct in saying, "No podra representare a una persona viva, sino en los casos de dad" (so too the Cadice Estense: ~ o incapaci- S. 909). RIGHT OF USUFRUCT AND ADMINISTFV\TION Section 663 (2) goes on to say that the person disinherited shall not have over the legitim the usufruct or administration to which he may be entitled by law over the property inherited by his descendants. dice Sardo (s. This was so too in the Cadice Estense ( S. 848) , the Ca741) and the Cadice Parmense the Spanish Civil Code: (s. 656). So too with Section 857. This is so because if it were otherwise the disherison would well nigh be meaningless. "patria potestas"; This forms an exception to the general rules of "la prospettiva di un tale diritto toglierebbe in gran parts alla punizione" says Borsari. Moreover, this would have been the testator's intention, who would not like to see the disinherited person enjoy the property in an indirect manner. The law tries to adopt a "via media" by benefitting the disinherited person's children, and denying the disinherited person the right of usufruct and administration. Borsari adds with regard to unworthiness, "Del resta, se il genitore un diritta di usufrutto o di amministrazione non ltha e non puo• pretenderlo, e se una tale qualita' non potrebbe mai spiegare efficacia di fronts ai terzi non e' da credersi che la legge faccia ai figli duro divieto o di affidare al padre la condotta dei proprii affari, o di farlo partecipare anche oltre i bisogni della vita, degli emolumenti ereditari". * See above Page 37 0 - 100· -· MAINTENA.NCE ALLOIJANCE Finally, Section 665 lays down that where the person/disinherited has no other means of subsistence, those who in consequence of his disherison shall benefit by his "legitim", shall be bound to give him maintenance to the extent of the fruits of the legitim, saving any other right of maintenance he might have according to law (5). this renders the disherison milder, so that the disinherited person will not be tempted to resort to illicit means if he finds himself in dire straits. The law makes an exception to the rule that the legi- tim is due in full ownership and is not to be subjected to any condition. But does Section 665 apply also to the surviving spouse or illegitimate children who are only entitled to a "ri servata portio"? The law seems to refer only to the legitim. In the case of an ille- gitimate child who has not been acknowledged as in Section 67?, the heirs themselves may elect to pay a (maintenance) allowance either in cash, monthly in advance or by granting the usufruct of one or more immovables. And this when he has not been disinherited (s. 679, 2). So that if we were to apply Section 665 also· such a case, the disherison could be nearly insignificant. But even so, the benefit contained in Section 665 should nevertheless be extended by analogy to persons entitled to a reserved portion, so as to guarantee them this restricted right to maintenance. Section 39 (1) says that parents or other ascendants may refuse maintenance to children or other descendants on any of the grounds on which an ascendant may disinherit a descendant, under Section 660. But after the parent's or ascendant•s death, the descendant acquires a limited right to maintenance in virtue of Section 665, which right should not be denied. This result is slightly ambiguous and might not have been foreseen by the Legislator. DISINHERITED PERSON MAY SUCCEED TO PROPERTY FROl'vl WHICH HE H\S BEEN EXCLUDED BY A DIFFERENT TITLE Now let us imagine that the property has devolved on X. father, Y, has been disinherited by the ascendant,. A. (5) His But X, the son 1 This was also found in the Cadice Sardo (s. 743), the Cadice Parmense (s. 658) and the Cadice delle Due Sicilie (s. 854). ~ dies before his father, Y. 101 - Even in Roman law Y could inherit the very same property of A from which he was excluded, since it derives from another person's inheritance: "Qui Titii testamentum falsam dixit, nee obtinuit heredi ejus heres existere prohibendus non est, quia non prinoipaliter in Titii hereditatem succedit" (Fr. 77, ff., De his. quib,. ut indign. auf ., XXXIV, 9). A thoroughly different solution to this principle (which could be said to be a defect) was provided by intermediate law. The Cadice Es- tense, for instance, provided in Article 848 that the disinherited son or descendant could "not" succeed "ab intestate" in conformity with what Article 730 said. So too the Cadice Sardo in Article 741 said "ne potra' in detti beni succedere ai proprii figli e discendenti in conformita 1 di quanta e' prescritto nel articolo 711 11 • But it is felt, that such a provision, derogatory of general principles, is rightly not included, in virtue of the generally held principle that "hereditas adita non est amplius hereditas, sed patrimonium heredis". In fact, when the property devolves on the son, X, it is confused with his other property which he possesses. When the son X dies, his parent, Y, will succeed without distinguishing from where the property has been derived. would arise. This has to be so, because otherwise difficulties Moreover the principle that an inheritance is an ideal unity would be infringed and inquiries as to the provenance of the heir's property should not be allowed. PARTIAL DISHERISON Could the testator choose to disinherit partially? For instance, could the father instead of excluding his son totally from his legitim, disinherit him and include a disposition by singular title in his favour or bequeath him half his legitim, in the same will? Pacifici- Mazzoni, with reference to unworthiness, says:"Non ci sembra poi potersi escludere, come fanno il Losana e il Vitali, che la riabilitazione possa essere parziale: ben puo 1 ammettersi che il testators, qualora lo dica espressamente, intenda perdonare (all 1 indegna), ma solo in parts, nel senso che sia devoluta a lui solo quella parte dell'eredita 1 da lui indicata, e non piu'; in questa ipotesi l'indegno 1 non 1 riacquista in nessun casa la pienezza dei suoi diritti successori" (Istituzioni di Diritto Civile Italiano, Val. VI, Pt. I, P. 82). - 102 The same principle, in my opinion, ought to apply also in the ease of disherison. The rules regulating disherison would still apply. Pothier also says that a disherison may be partial:Celui qui exherede quelqu 1 un de ses enfans ou autres parents, peut apporter quelque modification a l'exheredation, en laissant a l 1 exherede une pension alimentaire, ou quelque effett de la succession 11 (Oeuvres de Pothier, P. 25 - 28). 11 In Yugoslavia, for instance, the affected heir is deprived of his reserved share to the extent fixed by the testator and the share from which he has been excluded devolves as if the disinherited person had died before the testator (s. 48). S£\.f"EGUARDING THE NON-DISPOSABLE PORTION The testator might attempt to defeat the persons entitled to a portion of his inheritance of their rights by squandering his estate during life. Section 1909 lays down that donations of any kind, even if made in contemplation of marriage to future spouses and to the children born of their marriage, shall, if at the time of the opening of suecession of the donor be found to exceed the disposable portion, be reduced to safeguard the non-disposable portion. If the person involved is dissipating his estate during life other than by means of donations, he may be interdicted from doing certain acts (S. 225) as provided in Sections 518 and 526 inclusive of the Code of Organiz~o and Civil Procedure (eh. 15). A DISl-ERISON LAPSES:( 1) If the disinherited person predeceases the testator (s. 664); ( 2 ) If the disherison is revoked, by a public deed (see S. 643) or other writing: See Troplong, op. cit., reference to discussion b¥ the "Supremo Consiglio di Cancelleria" -~ Revocation is irrevocable ( 6) ;:•·p .357 • (3) If the ground is not successfully proved, or if the will is proved null or false, since such a will cannot have any juridical effects (See Merlin, Repert., P. 502, para II). (4) If the person entitled to take advantage of the disherison renounces to his right, and the parties come to an amicable set~mn. (5) If there has been reconciliation. RECONCILIATION Our law lays down nothing in this respect; in the case of un- worthiness, it says that rehabilitation has to take place by a public deed or by a will. Section 772 of ~he Austrian Code says:- "A disin- heritance may be repealed only by an express statement which has been (6) In Czeckoslovakia a disherison may be cancelled in the same manner in which a will can be revoked. - 103 - set forth in the legal form." But in the absence of any such provision in our law, and in the absence of any provision saying how a disherison may be revoked, my opinion is that reconciliation should cancel the right to disinherit and should revoke a disherison that has already been made in a will. The Spanish Code says, for instance, "La reconciliation posterior del ofensor y del ofendido priva a esto del derecho de desheredar, y deya sin efecto la desheredacion ya hecha" (s. 856). So too under Hungarian law (s. 149). Yet Spanish legal writers retain that if the testator were to include in the very disposition of disherison that he forgives completely the offender, this would not be the type of reconciliation required by the law. Reconciliation implies that the parties resume their good relations. Under German law, if the testator condones the offence constituting the ground of disherison, he thereby revokes the disherison. In the case of a disherison based on the descendant's immoral way of life, if the descendant permanently amends his ways, the disherison ceases to be effective, so long as this occurs before the testator's death (B.G.B. 2336 1 4; see also S. 660 (f) under our law). The situation would have been far happier had our law included an express provision on reconciliation or condonation. But even so, it is submitted that reconciliation should render the disherison inoperative. The burden of proof would lie on the disinherited person, and it would be up to the Judge to examine whether their relationship, after the making of the will, was such as to convince him that the testator had in fact forgotten the past. D. Valente (see Troplong 1 op. cit., P. 357) says:"E' vero, che la non rivocazione del testamento potrebbe fare dubitare della volonta' del testators di perdonare le offese ricevuto. Ma la non,rivocazione del testamento none', che un 1 omissione 1 mentre i fatti, che costituiscono la riconciliazione sono de' fatti positivi, che sono sempre piu• efficaci e piu' concludenti di una semplice omissions. 0 1 altronde la riconciliazione distrugge moralmente per se sola tutte le conseguenze degli antecedenti dissapori, e rimette le case nello stato, ad essi precedents" (6). (6) Merlin says, "Ella e' un folgore che non si conserva se non con lo strepito e la collera, talmente che se le tempests si colma, ed il padre riguarda una volta il suo figlio con visa sereno, tutte le nubi sono dissipate, e si presume che egli abbia dimenticato il passato; cio 1 e 1 cosi vero che il perdono come prima sia servito per scancellare l'onta 1 del figlio, il padre.non puo' piu' prendersene per far sussistere la diseredazione che avra' fatta, ed ancor meno - 104 - Judge Harding also hinted at the importance of reconciliation when he said:"Illi huwa anki ta• importanza 1-fatt accertat mix-xhud Cumbo u x-xhud Antonio Borg7 i1ii-wara dak 1-incident it-testatur u 1-attur kienu 'in buoni termini', tant li 1-istess testatur kien jithabat biex lill-attur jipprokuralu xi agenziji meta 1-attur kien qieghed jinnegozja f 1 Tunisi. Ma hemmx bzonn illi 1-Qorti tidhol fil-kwistjoni, agitata fid-duttrina, jekk irrikonciljazzjoni tnejjix 1-effikacja tal-motiv ta' dizeredazzjoni li seta' kien hemm qabel, kwistjoni diversament rizoluta fidduttrina, kif jirrizulta mill-Haimberger (Oto. Romano Private e Puro, Vol. I, Pag. 206), mill-Gluck (Vol. VII, Pag. 217), millMarezoll (Giornale del Diritto e Proc. Civils VI, 1, Pag. ?O) u mis-sentenzi citati mill-Merlin (Repert. Pag. 824). Ma hemmx bzonn, ghaliex f 1 dana 1-kaz ghar-rigward ta' 1-attur ma hemmx ebda kawzali ta' dizeredazzjoni: imma 1-fatt fuq imsemmi jista' juri illi t-testatur ma setax ragoii'8"\i'Olment jirritjeni veru dak li kiteb in segwitu fit-testment" (Vol. 29, Pt. II, P. 880). Pothier retains that a disherison need not be revoked by a written act. If the disinherited person can prove reconciliation, as for example, by proving that the testator paid frequent visits on him, this suffices; the injury suffered is presumed to have been pardoned. Even if the disinherited person has rendered some significant service to the testator, as when he has saved the testator's life, the disherison is to be presumed as being revoked. The importance of such aid is that it should cancel the offence which led to the disherison and is an expiation of guilt (See 11 0euvres de Pothier, Pages 25-28). It may also be argued that our law recognizes that tion cancels the right to disinherit. ~ When examining Section 660 (g), regarding opposition to marriage, we saw that if the ascendant was not in fact released from the obligation of maintenance, then he cannot disinherit the descendant. This is so because, if he did not avail himself of the occasion at the moment to be "declared" free from the obligation of supplying maintenance then it is obviously presumed that the offence has been forgiven (7). SECOND MARRIAGE AND DISHERISON In the judgment "Antonio Bartolo ne. v. Avukat Dottor Giorgio Gamilleri ne. et" an interesting point arose. (7) In this case Giovanni per crearne un'altre." It should be noted that Merlin had said, "gli scrittori e le decisioni sembrano discordare sulla quistione di sapere se si debba ammettere la prova per testimoni de 1 fatti di riconciliazione. L'ultima giurisprudenza sembra volere cha non si riceva la prova testimonials senza un caminciamento d~ prove per iscritto". See judgments quoted by Merlin, op. cit., V Diz, P. 502. See also the effect of cohabitation in separation, Section 77 (1). ... 105 - Bartolo; a child of the first marriage had been c.lisinher:Lted by his father. But by a judgment delivered on the ?th. January, 1936, the ground of disherison was left unproved and he consequently acquired his right to the legitima If the testator had left solely the legitim to a child of the first marriage he would not have been able to bequeath more than this to his children of his second marriage or second wife because of Section 641 which provides that, "Where a spouse having children or descendants as stated in Section 639, has contracted a second or subsequent marriage, such spouse cannot bequeath to his last wife or her last husband, or to any of the children of the second or subsequent marriage, more than that which the least favoured of the children of any former marriage will receive." Theappsllarnt submitted that this provision is not applicable when the son of a first marriage acquires the legitim as a result of an unproved ground of disherison, and not because his father wanted to bequeath him solely the legitim. The Italian text said, "il coniuge ohs avendo figli o discendenti come e' detto nell' articolo ~01 ne abbia contratta un secondo ad ultimo matrimonio, no1 puo' lasciare all'ultirno caniuge, o ad alcuno dei figli del secondo od-Ulteriore matrimonio, piu• di quello che fosse per essere conseguito dal meno favorito tra i figli di matrimonio anteriors" rsr-- The Court of Appeal formed of Sir A. Mercieca, Kt~, M.A., L.O,(Pre~ R.F. Ganadot LL.D., and Professor E. Ganado, LL.D. held that, "Id-dispasizzjoni taghna tidher 1-aktar cara fuq dana 1punt, ghaliex mentri tistabilixxi illi t-·testatur •non puo 1 • lasciare all 1 ultimo coniuge, ecc., fl-ahhar parti 1-legislatur ma juzax 1-istess verb, imma jaghti idea ohra bil-kliem 'piu• di quello che fosse per essere 1 conseguito' dal meno favorito 1 • Ilverb •conseguito' in kontrapposizioni ma 1-iehar 1 lasciare 1 , jaghti 1-idea li ghandu 1-legislatur; juza 1 lasciare' ghallparti li tirriferixxi ghad-disposizzjoni tat-testatur, u allure. ma setax isib verb li jesprimi ahjar il-kuncett tieghu; izda meta gie ghat-tieni parti, ma uzax 1-istess espressjoni, ghaliex kienet tkun wisq ambigua, kif id-dottrina tikkritika 1-inkorettezza ta• 1-art. ??O tal-C.C. Taljan; mentri meta biddel dak ilverb, u ghat--tieni parti, cioe' ghal dak li sejjer imiss lil wished mit-tfal ta' 1-ewwel zwieg, uza 1-espressjoni 1 che fosse per essere conseguitog, wera b'hGkk illl dak il-konsegwiment jista' jkun indipendenti r.:~1-intezjo tat-testatur". The argument raised by the appellant was therefore legally incorrect, since the testator thought he was exercising a right recognized by law, when disinheriting. But the testator should have known that such right was subject to the Court's control; (8) if he exercised such right The Cadice Sardo in Art. 149 uses "lasciare" and "lasciato"; the Codicit !:;armenfie, 0 lasciare"; the Cadice delle Due Sicilie: "non patra uonare • - incorrectly, OT 106 - the ground is not pl:'oved,the result is that he exercised no right at all. The consequence is that, "L-legislatur jikkunsidra bhalli kieku 1-missier ma ried ihalli xejn mis-sostanzi disponibbli lit-tfal, salva 1-porzjoni ind~s ponibbli li ma ghandux kontroll fuqha. rJla hemm ebda differenza bejn din il-legittima li t-tifel jiehu, peress illi d-dizeredazzjoni ma gietx approvata u 1-legittima li xi mindaqqiet il-missier improprjament ihalli lit-tifel fit-testment tieghu; fiz-zewg kazi dak ma jkunx laxxitu u liberalita• tal-missier, imrna ilporzjoni indisponibbli. •• "La legge e•concepita• in uno spirito di severita•, e deve essere applicata nel medesimo spirito" (Vol. 30, pt. I, P. 840). WHERE TESTATOR DECLARES THL\.T THE LEGITIM HAS BEEN SATISFIED In "Mifsud v. Mizzi 11 (14th. December, 1973), it was declared that, • • • id-disposizzjoni testamentarja msemmija fic-citazzjoni hi nulla u ineffikaci in kwantu tghid illi teskludi lill-appellata mil-legittima u in kwantu timporta li 1-legittima spettanti lill-istess attrici ghandha titqies ga soddisfatta b 1 dak li hi hadet bhala data, u dan peress illi d-dritt legali ta• 1-attrici ghall-legittima ma setax.jigi-eskluz ghar-raguni esp~a fiddisposizzjoni u 1-kwistjoni jekk il-legittima dovuta lill-attrici gietx soddisfatta jew le b 1 dak li 1-istess attrici ga hadet J~ep mil-_!kw~daJon !! flt!~ t!:_~ is~ skond il-ligi 11 • 11 One cannot know beforehand what the legitim's value will be, so that such a testamentary disposition is null and void. FORFEITURE CLAUSE Section 657 says that the legitim is due in full ownership, and it shall not be lawful for the testator to encumber it with any burden or condition. The testator, therefore, cannot impose a condition, which if not fulfillef will entail forfeiture of the legitim. In "Nicolina moglie di Carmelo Schembri assistita dal medesimo v. Nicola Micallef" it was declared that, "Tali clausole di decadenza, sempre di stretta interpretazione, come nella specie, contra un figlio legittimo che impugr.asse la disposizione fosse anche come nella specie, in manifesta contravvenzione alla legge (IV, 783, Col. 2a); "non e' lecito al cittadino, disse bene questa Corte nella s~a sentenza del 3C giugno, 1891 (XII, 711, Col. la inpr.)" calla comminazione sudeetta indirettamente ottenere lo scopo che la legge ha vietato per ragione di ordine pubblico. Ed inoltre, anche a voler suppore sostenibile tali comminazione essa dovrebbe circoscriversi alle liti evidentemente temerarie ed irJiuste mosse dall'erede (VI, 318-319)" (Vol. XXIV, Pt. II, P. 264) (9). CREDITORS OF THE DISINHERITED PERSON Section 1186 provides that it shall be competent to any creditor (9) Yugoslav law, as other laws, does not allow clauses whereby the testator tries to prevent the privileged heirs from dispositions in the will upon pain of forfeiture of portion (so called "clausula cassatoria"). This is ground of disherison must in all cases have been in time of the making of the will (s. 48). challenging the their reserved so because the existence at the - 107 - in order to obtain what is due to him to exercise any right or action pertaining to his debtor: mei est meus debitor). tion: this is the general rule (debitor debitoris But this rule is subject to an important excep- any rights or actions which are exclusively personal to the deb- tor cannot be exercised by the creditors. If the disinherited person accepts that he has been justly disinhe~itd or if he does not desire, for some reason or other, to re-dis- turb the order in the family, could the creditors institute the action themselves to challenge the disherison? The disinherited person might even decide to wait for some time before instituting the action, in order to defeat his creditors, or because it would be better for him to do so, as when an important witness will soon die; the more the evidence against him is weakened. exclusively personal? also the longer he waits, Is this right of action My opinion is that it is, since the right to the legitim is safeguarded by law for the children's benefit and not for the creditors, and since a family dispute is usually involved. What if the disinherited person makes a compromise with the person entitled to take advantage of the disherison? Then the creditor. may in his own name impeach any act made by the debtor, but only if such act was made in bad faith to defraud him of his claims, subject to the right of the disinherited person to plead the benefit of discussion (Section 1187). LIMITATION CF ACTION (PRESCRIPTION) The action for challenging a disherison has to be made within a specified term. Section 885 states that the action for demanding ••• the legitim, or the portion of property granted to illegitimate children or to the spouse, in testate and intestate succession, shall lapse on the expiration of ten years from the day of the opening of the succession. The said term does not run wit'• regard to minors, or persons interdicted, except on the expiration of one year from the day on which they shall have attained majority, or the interdiction shall have ceased, as the case may be. But may the "bona mente 11 disinherited child whose interdiction ceases after the death of his ascendant claim the legitim? It is unlikely, but not certain. The above mentioned term - 108 - applies also for claiming a supplement of legitim: u ohrajn versus John Luigi Apap"; See 11 Antonio Zammit Vol. 29, Pt. II, Page 25. DISHERISON OF "AB INTESTATO" HEIRS As regards the validity of a ~tive will, where all the testa- tor deciares is that he excludes "X", and nothing else, reference is made to what was said as regards disherison of "ab intestato" heirs in France and in Italy (Pages 28 to 33). The French view seems the mare acceptable to ms. **** ** * **** ** * - 109 - CHAPTER VIII: MERITS AND DEMERITS OF THE LAW OF DISHERISON. We shall now be dealing with the arguments brought forward against and in favour of the la~ of disherison. We shall first deal with the reasons against the institute and see why it was abrogated in France and in Italy. Then we shall dwell into the reasons for its retention or otherwise and attempt some possible solutions or recommendations. CRITICISM OF "BONA MENTE" DISHERISON Even "bona mente" disherison does not escape criticism. It is true that the disinherited person might not attack the decision of the testator to leave him cnly the maintenance allowance up to the fruits of the legitim, if required, instead of full ownership of his due portion, when he considers that if it were given to him in full ownership his creditors would get the benefit of his share; in this wa~ at least, he knows that his children are the ones who will benefit, so that it is not completely to his prejudice. But some retain that all children who have been thus disinherited would take action to challenge their father's decision, as this will be advantageous to them. It is argued that the father's decision might affect the son's future life in an unforeseen way. Instead of being for his benefit, it might back-fire and result to his detriment. Because, how could the sor, ever present himself to occupy a public office when his very father has proclaimed him insolvent or, perhaps even worse, confirmed his distrust in him for his being a prodigal? How could the son enjoy any confidence or respect in any type of profession or calling? And could not the testator have been too strict in rendering his decision perpetual, when the cause of insolvency or prodigality might in fact have been of a temporary nature and not permanent? Moreover it is well known how difficult it is, when it comes to concrete cases, to establish insolvency and even more difficult to decide whether bankruptcy exists, whGther suspension of payments is permanent or not, or whether it is merely apparent. may present themselves here in a milder degree. These difficulties A trader, for instance, might well have so many creditors that it would be utterly impossible for him to pay them all "if" he were to be asked to pay them all at one go; but nonetheless, the public trust, his good will, his credibility, - 1·10 ~ his reputation and other relevant factors may contribute to keep him going successfully and to prosper. What might in fact amount to insol- vency or bankruptcy in one particular case, may well not amount to such in another analogous case. This type of disherison, some argue, is furthermore an exception to the right to legitim, as it gives the testator discretion to play about with the prodigal or indebted son's right when no just cause really exists, except for the fact of his being in debt or a prodigal. Prodi- gality, it is argued, should well be a cause of interdiction, whose effects cease when the prodigality and interdiction cease; but it shoulc not be a ground for disherison, where its effect could be perpetual, if the ground is found to exist and is proved in Court at the relevant time and the judgment becones "res judicata". Later, the disinherited son might return back to normal, but the Court's decision would still hold good. So that it might have behind its drafting praiseworthy intentions, but still inconveniences could arise. "MALA MENTE" DISHERISONS A criticism of disherison "mala mente" is that the first judge (i.e. the testator) who declared the disherison is now dead and one cannot fully know the motives of his decision. ness, the victim, is absent from the trial. The most important wit- It is true that the tes- tator's declaration might be admissible, but this might not be enough and the interested person alleging the disherison may not be in the position of proving the facts to the satisfaction of the Court, so that the testator's intention might not be fulfilled after all, whilst the harmful effects might still be as bad, in terms of family quarrels. It might also be easily argued, if the ground upon which the disherison is founded has occured quite a considerable time ago, that by the passage of time the offender has given proof of his emendment. Also, as time passes, the alarm caused by the offence within the family diminishes and is eventually wiped out, so to speak, by the oblivion of the very offence. Much more important, juridically, is that by the lapse of time, the evidence is considerably weakened or dispersed as the memory of the circumstances of the offence is blurred and eventually forgotten, distort- - 111 - ed, and possibly exaggerated. Also the offender may consequently ~ind himself unprovided with an adequate defence against the accusation. It might be remarked that prescription in Criminal matter, in fact, is founded on the mere effect of the passage of time which removes the necessity and expediency of enforcing punishment (See Mamo, Sir Ant., Criminal Procedure, P. 33). The ground of dishsrison may have to be proved after the term of prescription for criminal liablity and civil damages, if any, has lapsed. PREJUDICIAL TO DESCENDANTS AND FAMILY HONOUR Another reason against disherison is that by retaining the right of disinheriting, which could be justified vis-a-vis the guilty son, would be prejudicial to the innocent grandchildren, who should not be punished for their father's fault. apply to our law; This reason, as seen, does not but if the children or descendants are born after the opening of succession, then the disherison •may' undoubtedly be .:!:!. at prejudicial to them, the relevant moment the father did not have any children or descencants. Again, it is said, that only an insignificant number of those disinherited are allowed to succeed by the Court. power is not usually atused of. tion that the Court fa~ours cases point otherwise; This shows that the But I do not agree with this sugges- disherisons. On the contrary, the decided the required standard of proof is necessarily high, and many cases finish with an amicable settlement or compromise between the parties. Under the aspect of the transmission of property within the family, disherison, some point out, produces nothing but harmful effects. The conflicts in the law Courts are of a scandalous nature. For pe- cuniary reasons the mel'llOry of the deceased might, and is, usually blemished by his very near relative who opposes the disherison. The di- sinherited person's behaviour, on the other hand, is presented in a favourable light, most of the time out of lust for money, and this renders the matter even more odious:"Potrebbe eJli mai immaginarsi una scena piu' contraria ai buoni costumi, qJanto quella di un avo la cui memoria fosse lacerata dal suo figlio ridotto al solo usufrutto nello stesso tempo che la condanna di questo figlio sarebbe disvelata dai - 112 - suoi propr11 figliouli? Questa famiglia non diverebbe forse lo scandalo e l'obbrobrio della societa:? quando potrebbesi mai sperare che si ristabilerebbe il rispetto dei figliouli pei genitori? Malamente, dunque, avrebbe adempito il suo scopo quel padre di famiglia il quale, riducendo il suo figlio all' usufrutto, non avesse avuto che delle benefiche intenzioni versa i suoi nipoti; e ben deve credersi che egli sarabbesi da cio' astenuto se avesse preveduto le funeste conseguenze che avrebbero seguito la sua disposizione" (Troplong, Vol. I, Pref. LIX). But nonetheless it was always felt that parents should have some means by which it would be possible to maintain the desirable order within the family, without violating the principles of justice. At a time it was thought that such an aim could be attained if the parent were to be empowered to leave just the usufruct to the guilty son of the portion that he was entitled to, instead of leaving it to him in full ownership. This was resorted to especially with re- gard to the cases of the descendants who were heavily burdened with debts. LEGISLATOR'S DUTY The Legislator, it is pointed out, has the duty of enacting laws that are in conformity with "natural law" and safeguarding the respect that children ought to have towards their parents. But a law which gives the disinherited person the right to challenge the testator's decision of disinheriting him or her, thus injuring the deceased's image by blaming him or her of an unjust, incorrect or unreal declaration, in itself constitutes a further outrage to be added towards the dead person. In giving this control to the Courts, the law urges the disinherit- ed person to institute an action to ridicule the disinheriting person openly. It is therefore said that the legislator should see to it that conflicts between members of the same family are not to be encouraged; moreover, "Il piu 2 dells volte e' coss pericolosa di rimet- tare tra le rnani dei genitori dells armi che i figliouli possono cambatters e renders impotenti" (Troplong, op. cit., Pref. LIX). OTHER MEANS OF PUNISHING AND PUBLIC ORDER It is further pointed out that to avoid family arguments and accusations the testator is completely free to dispose of the "disposable" portion of his estate. sential, therefore. The institute of disherison is not all that es- Because the testator may still favour the child he prefers and who deserves it, leaving merely the legitim to the ons - 113 - who might have been guilty of some offence towards the testatore A res- triction to this reasoning arises in the case envisaged in Section 641 of our Civil Code concerning second marriages. Where felt necessary, the testator could also leave in ownership a part of the disposable partion or all of it to the grandchildren, and the usufruct to the child who might be in debt or a prodigal. But the testator, some retain, should never be empowered to interfere with the non-disposable portion of his estate. The right to legitim is essentially of a public nature, and should therefore not be subject to the testator's discretion, a discretion which is excessive of what is required• In the suggested argument the non-disposable portion would remain intact and intangible, and no means of impugning or compromising the testator's intentions would then be available. It should be remembered though that by disinheriting the testator is not usually enabled to increase the disposable portion of his estate. With regard to the point put forward that the power of disinheriting is contrary to public opir.ion, one may quote Arnulfo who said in defence of the institute:"Io non mi estendero molto a questo riguardo, perche della pubblica opinione ognuno giudica a modo suo, ma diro 1 che la sana opinions vuole che il padre di famiglia sia rispettato dai figli, e che da cio' deriva la costituzione di una buona societa' civile" (Quoted in Vitali, Vol. V, P. 18) • HARMFUL TD SOCIETY AND CONTRARY TO CHRISTIAN IDEAS Persons not accustomed to work and who are denied the means of maintenance, might easily resort to crime, or be a burden to the general public. And this might not be remedied by granting them maintenance up to the fruits of the legitim, for if they have children of their own, how are these latter to live? Under our law, this reasoning could apply if the grandchildren are born well. after the opening of succession so that they may not be entitled to take the legitim in their father's stead. The ill-will that may exist against the child, spouse or ascendant, ought to cease at the time of death, when one asks pardon of God for offences far more weighty than those suffered; it would not be right to thirst for vengeance against the child, spouse or ascendant, as the ease may be:- "Forgive us our trespasses, as we forgive those who trespass 114 - against us". This is a valid objection. But disherison is meant solely as a deserved punishment and is not intended to sanction vengeance. One has to see whether the disinherited person desires reconciliation, whether he or she desires ta be pardoned by the testator, et cetera, before one can talk of vengeance. The law of disherison does not operate "ipso iure"; it just bestows a facultative power on the testator of pronouncing or declaring his intention to punish, and favour the deserving ones. It expects, that a person in his last important act of civil life, in the most solemn hour of death, could have the courage of exposing his children's ignominy, thus staining the name of the whole family. is immoral. giveness? The supposition How could one reconcile this with the doctrine of forIf the law had the power, it should for the honour of huma- nity, cancel and disregard the declaration of the testator and not sanetion it. It might after all be that the blame put on the child is shar- ed in part by his father who brought him up. Furthermore, during life parents have only the right of correcting their children, so how come they have the faculty at death of inflicting a perpetual punishment? Magliano puts all this in the following way:"Il privare totalmente i figli della legittima si oppone del pari alla politica ed alla morale cristiana. Alla politica, perche, uomini non educati alla fatica, ridotti all 1 indigenza, diverrano funesti a 1 loro concittadini. - Oltre le lite per esigere, olre la difficolta' di convenire 'pro rata' gli eredi, difficolta', che cresce e si suddivide con la morte di ciascun erede, avvi pure, che un coerede dissipatore puo' vendersi tutta la sua quota, ed i beni non debbono trasmettersi con un peso, che non e' reale, ma personale. E che sara' poi degli innocenti figli del diredato, se gli alimenti finiscono con la vita del padre colpevole? Si oppone alla morale cristiana, poiche si da sfogo per ordinario a tal vendetta sul punto di morire, quando e' momenta d'implorare perdono da Dia per offese ben piu' gravi di quells ricevute. Si rammenti l'aureo passo dis. Agostino riportato da Cesare Costa (Lib. 3 variarum ambiguitatem juris, cap. 23) e da Graziano, il quale al dire di Danre (1) P.iuto l'uno e l 'altro fora. Siffatto passo e' cosi espresso:'Quicumque vult, exheredatio filio, haeredem facere ecclesiam, quaeret alterum, qui suscipiat, quam Augistinum. 1 Chi vuole godere della vita, non deve togliere i mezzi della vita a' propri figli. Ne poi i genitori sono privi di colpa per quella cattiva educazione che d'ordinario produce la dissolutezza de' figli. f1) This objection could also be raised, in appropriate cases, against the institute of unworthiness, where the offended party may have time to rehabilitate the offending party. Only the procedure between the two institutes differs as regards forg:i.veness. - 115 - Che fra le cause della diredazione quasi niuna merita una perpetua prigionia. Eppure il prigione riceve gli alimenti, mentre il diredato senza mezzi, onde vivere, e' condannato ad una morte continua. Ma i genitori, si risponde, non abuserranno di questa facolta 1 ! Cio' prova troppo, e con questa induzione potrebbe ripristinarsi anche l'antico barbaro dritto romano 'vitae et necis'. La legge non e' gia' scritta pei giusti ma per gl'ingiusti." He then made an important suggestion to adopt a middle course, saying:"Quando non si voglia conservare 1 1 abolizione della diredazione secondo la legge attualmente in vigore, sarebbe men dura cosa di accordare ai genitori di privare i discendenti della sola meta' della legittima per le cagioni nell' articolo espresse. Sara questa una punizione sufficiente a mantenere i loro genitori senza privarli intieramente dei mezzi, onde vivere 11 (Quoted in Troplong, op. cit., P. 354)• LAW OF UNWORTHINESS DIMINISHES THE IMPORTANCE OF THE LAW OF DISHERISON It is also opined that the Legislator has provided for abuses by the institute of unworthiness to inherit and this is one of the reasons why the law of disherison was done away with in France and Italy. It was moreover felt that the Legislator should not be an accomplice to hate and vengeance, which might be behind a disherison. In the case of unworthiness, the Italian legislator felt that the testator should be granted the power of f0rgiving the offender by rehabilitating rim. The- se are the reasons why the "Guardasigilli" was adverse to the law of disherison:"La teza quistione fu discussa nella materia della legittima, riguarda la diseredazione. E' noto, che nel diritto romano la diseredazione fu introdotta a favore dei figli o discendenti (pietatis causa), e non · a loro danno... Ma diversamente procedono i Codici moderni, che ammisero la diseredazione. Essi riconoscono, di primo tratto, un diritto di riserva nei discendenti e negli ascendenti. Ammettendo la diseredazione, lo fanno a danno dei medesimi, non a loro vantaggio. Ma un altro ordine di ides viene a respingere la diseredazione. Le cause principali che vi danno luogo, sono annoverate fra le cause di indegnita 1 • Vien quindi meno in gran parts la sua giuridica importanza. Se non che nelle cause d'indegnita' e' la legge che pronuncia l'esclusione del colpevole: lasciando tuttavia al testators la facolta' di perdonare, riabilitandolo alla successione. Ma nella diseredazione la legge non pronuncia, non colpisce, essa arma il testat8re del diritto di pronunciare, di colpire. 11 (Quoted in Vitali, op. cit., P. 18. Gianzana, Aelazioni, Vol. I , P • 74 , n • 116) • As Pothier had said:" ••• le medesime cause per cui 10 sarei probabilmente stato diseredato da qualcuno dei miei parenti se f ossero venute a sua conoscenza, ed egli ne avesse avuto il tempo, mi rendono indegno della sua successions, se non vennero a sua conoscenza o gli manco' il tempo" - 116 - This is far from being exact, though, with regard to our law, for the offences rendering a person unworthy to inherit are of a diff erent nature than the grounds that might result in a disherison. Another reason why disherison was abrogated in Italy is because testators hardly ever have recourse to it (See "Nuovo Digesto Italiano", Page 40). REASONS IN FAVOUR CF THE LAW CF DISHERISON But in favour of the retention of the law of disherison Pasqualini had said:"Questo diritto e' nell essenza della patria potesta' , e non deriva ne dal domestico impero, ne da• famosi domestici giudizi; ma sibbene dal dritto, che deve avere ogni padre di famiglia di potere punire quel figlia, che io ha ingiuriato, battuto, negate gli a1imenti, ecc. ecc., punizione, che non puo' essere limitata dal legislators. La patria potesta 1 nel decennio fu molto depressa, conviene realizare il suo edifizio. Da questa dipende l'educazione della nazione, ed il bene, felicita', e moralita• della stessa" (Quoted in Troplong, op. cit., P, 354). Seneca dealing with the same subject of disherison had pointed out:Numquid aliquis sanus filium ad primam offensam exhereciat? Nisi magnae et multae injuriae petientiam evicerint, quam quad damnat non accedit ad decretorium stilum. Multa ante tentat, quibus indolem et pejore loco jam positam revocet: simul deplorata est, ultima experitur" (Book I, De elementia, cap. 14). 11 There is no need therefore to mistrust the love of a father, ~pause or descendanth who will not resort to such a punishment; not until, that is, he or she is completely convinced of the complete perversity of the offending party, and in such a case it is useful to keep a watchful eye on such a person. So~lina held the same opinion, saying:- Avvi ••• un rigore autorizzato anche dalle leggi divine. Quel figlio, che giunge all'eccesso di spingere l'empie mani sul padre, e 1 un mostro della societa 1 , Il Patriarc a aveva detto altra volta di scacciare dalla famiglia chi ne turbasse l'ordine e la pace. Ogni genitore e' un patriarca nelle mura domestiche. Quale presso i Romani sia stata l'autorita' paterna, sarebbe qui superfluo di ripetere. Oggi se il padre non e• autorizzato dalla legge a punire in qualche mado il figlio snaturato, nell'attu&le corruzione de' costumi si verra' a garantire 1' empieta' e la licenza. Ma i padri abuseranno di questo diritto? E chi puo• crederlo. Non e' forse risaputo, che i genitori lungi di procedere rigorosamente nell'educazione dei figli sogliono molte case dissimulare per cui Terenzio, sommo conoscitore del cuore umano, fa dire a Cremete nell' Andria:'Pro peccato magno paulum suplicii satis est patris'. In effetti quanti genitori offesi hanno diredato sinora i propri figli? Quale avvocato ha difeso simili cause nel - 117 - Faro? E come risponderemo a chi si dira: 'Voi avete tolta a' genitori ogni giurisdizione, volete usurpar loro anche il dritto di punire con l'interesse? Ma il figlio diredato sara un menolico. - Bene sta. Chi trascini nella miseria le rimembranze de' falli comessi. - Ma il bisogno lo spingera al delitto. - Le leggi lo puniranno; servira' di esempio a' figli malvagi" (Quoted in Troplong, op. cit., P. 355). Morality and Justice demand that a person who has grieviously offended another should not inherit from that other person, even if he would otherwise have been entitled to the legitim or reserved portion. The Legislator realizes this in establishing the institute of unworthiness, where the exclusion operates "ipso iure", in the sense that the testator need not even manifest his intention of excluding the offending person. The law of unworthiness to inherit is found in all civili- zed countries where the right of succession is admitted. It should be noted, however, that unworthiness rarely provides for grave and serious offences against the testator (not even under French and Italian law, which grounds of unworthiness are similar to the grounds of unworthiness under our law). Under our law the off5noes that render a person unworthy to inherit are:murder; ii) i) wilful or attempted charging the testator before a competent authority with a crime punishable with death or hard labour, knowing him to be innocent (2); iii) compelling or fraudulently inducing the testator to make his will, or to make or alter any testamentary disposition; iv) prevent- ing the testator from making a new will or from revoking one already made, or suppressing, falsifying, or fraudulently concealing the will (Section 642). If the offence is not one of the above, however serious it might have been and however much malice or cruelty it might have manifested, it would not fall under unworthiness. Yet excessive abuses do not deserve the law's protection to the legitim (3). If the child has been guilty, say, of ill-treating his parent repeatedly, has often injured him or her physically, and the parent has as a consequence become blind, or incapacitated, would not this justify the total forfeiture of the son o f his succession rights? (2) (3) This ground, in my opinion, ought to be removed from the law of unworthiness. It should fall under the law of disherison. According to Branca, unworthiness, like disherison is a punishment of a private nature, "poiche la si subisce nei confronti dell' 8 ereditando 11; Branca, "Istituzioni di Diritto Privato" 4 Ed., Bologna (1958), Page 659. - 118 - Should it not be the rule that there should be different treatment between children who respect, honour, love and aid thsir parents, and those who gravely offend their father or mother? As Arnulfo objects:- La legge accordera' la legittima tanto al figlio che barbamente maltratta il genitore, quanta a quello che lo soccorre, e lo rispetta? Io credo questo un ingiustizia" (Quoted in Vitali, op. cit., P. 18). Is there anything really immoral to exclude a son from his right to the legitim, when he deserves this, in order to favour his brothers, who may deserve such benevolent treatment? (or to benefit the disinherited persons childreh?) DISHERISON DOES NOT PRECLUDE FORGIVENESS It is remarked that it is far more suitable and conformable with paternal love to forgive and forget, which is quite true. The offended relative still retains, in any case, the power of forgiving; if he does not say anything in his will, the offending party is "ipso facto" forgiven, and no one may avail himself of any offence he might have been guilty of. UNWORTHINESS: "PRESUMED DISHERISON" The institute of disherison undoubtedly provides a strong deterrent against perversity and possible abuses, instilling in children the fear of losing their right ta the legitim, or vice-versa. Moreover it is only right and obvious that the testator in the case of unworthiness need not declare his intention to exclude the offender from succeeding upon his death if one examines closely the offences therein contemplated. The exclusion is a "presumed disherison" by the law itself, and this is so because in the crimes therein specified, the testator may be in the impossible situation of making a declaration to that effect. So that the law of unworthiness and dis- herison are two different institutes that go hand in hand. CASE LAW It is quite true that case law indicates that disherisons are very rare to come across:no•altra parts, se talvolta i figli gravemente demeritano verso i genitori, la giurisprudenza appena ricorda qualche raro caso, in cui i genitori abbiano cercato di vendicarsi calla diseredazione. I magistrati non vi fecero buon visa. Cio 1 prova che esso non risponde ai principii dell'odierna civilta'" (Quoted in Cattaneo, "Il Cadice Civile Italiano", Pages 543 to 544). ..... 119 ... But if viewed from a different angle, this fad: r rather than proving that t:1e law of disherison is not serving its juridical purpose, may constitute the best proof available that the law of disherison serves its primary purpose as a deterrent and preventive institute; this is the best justification that there could be to the right of disinheriting. The normal testator will consider the matter at length before resorting to this extreme measure. Exactly because it lies in the testator's power and discretion to inflict the punishment or otherwise, compassion and love will generally have their way, and forgiveness will prevail: this is why we came across cases of disherison on- ly exceptionally. Notaries who draft the will would probably also ad- vise the testator against disinheriting if the justification is insufficient and would warn of the inconveniences that might result. As Arnulfo said, the fact that disherisons are rare, "e 9 ••• la miglior giustificazione del diritto di diseredazione: cio' prova che appunto perche' e' in facolta; del padre di infliggere la pena della diseredazione, rari sono i casi; la ~9.£1,E produce !.•effetto ~sidera_tq, cioe' ~ ~ed P;iL!.'. E.t:i2.E..YEL:i£j· i disordini delle famiglie 11 (Quoted in Vitali, op. cit., P. 18 ,. PERSONAL OPINION On the whole, it appears to me, that the problem is not easy to solve. The reasons against the institute cannot be discarded lightly; nor can the arguments brought in favour of the institute. But I think that the law of unworthiness and the law of disherison should be interlinked; in the former, the offences therein contemplated make it im- posoible for the testator to set down his intention, while in the latter, this is possible: this is how it should be. at least. If the law of disherison were to abolished, then in all probabilities it would be opportune to add to the grounds that render a person unworthy, and this would in all probai~.ty be more detrimental to the guilty person and more disputes roight resul-:;. In the case of unworthiness the testator, it is true, may rehabilitate the offender by means of a will or other public deed (s. 643) and since the law mentions how rehabilitation is to take place, there is no point in arguing whether reconciliation may cancel such unworthiness. If rehabilitation according to law is not made, then the offending party might be excluded from inheriting by any - 120 - interested party (4) by instituting the appropriate action for the deelaration of unworthiness. In the case of disherison, nothing may be done if the testator has declared nothing: ways the testator. the 11 movente 11 here is al- In unworthiness the "movente" is the law itself and if the testator does nothing the offender may be excluded by any interested party from his right to the legitim. So it may happen that in unworthiness, the offender may be exeluded contrary to the testator's wishes. For example, the testator might have procrastinated in rehabilitating the son, or he might even not have been in time to do so. The testator might have even forgot- ten or been wholly ignorant of the legal position or the possibility of rehabilitation. In the case of disherison, on the other hand, the testator's declaration is always necessary to start the ball rolling; and this fact alone is very important, for the testator will only disinherit in extreme cases. So that, all in all, if the mare important grounds for disinheriting were to be included under the law of unworthiness, the end result would not be in favour of the guilty person. There would clearly be more chances of his being declared unworthy, as he may be excluded from succeeding by •any' interested person. And let us face it, in such cases, it is better to let the offended party to judge whether the offender ought to be punished or otherwise; if he desires that the offence should be forgiven, then it should never be left in his successors' or would-be successors• discretion to decide whether to institute proceedings or not. Furthennore, the law of unworthiness applies to all successors, even appointed by will before the crime. Disherison applies only to persons entitled to a legitim or reserved portion. The distinction between the two is analogous to the distirY,tion in Criminal law where crimes are subject to prosecution "ex officio" by the Police or ex(4) Anyone having a legal interest may avail himself of unworthiness by instituting the appropriate action, not only those who are called to succeed instead of the person excluded, but also their creditors by the Actio Surrogatoria. Even the unworthy person himself may avail himself of his unworthiness if he has a legal interest to do so. So too, the State may institute the action to inherit itself. See Ferri, L., "Successioni in generals", P. 152, - 121 - ceptionally, upon private complaint (querela di parta). The testator 1 s complaint (i.e. express disherison) is required in disherison because the offence is more of a domestic nature. It is my humble opinion, therefore, that the law of disherison should preferably be retained (as it provides an effective deterrent). This does ments. ~ mean that the law in this matter does not need any amend- The grounds should be re-examined and revised. Some are mani- festly obsolete dating from less democratic times, and ought to be removed. Only very serious grounds should be admitted. disherison might be included: A nGw ground of "Where the descendant, ascendant or spouse has been •convicted' of a serious criminal offence against the testator". In similar cases the person alleging the disherison would be dispensed from the burden of proving the ground of disherison, as a judgment would already exist. I am also of the opinion that an express provision should be in- eluded saying that reconciliation makes it impassible far the testator to disinherit and cancels "ipso iure" a disherison already made. So too, if the disinherited person amends his ways and repents before the testator's death, the punishment would have no purpose and the disheThis would bring our law more in rison ought to be deemed inoperative. line with German law and-would make our law of disherison undoubtedly more equitable and acceptable. opinion the most acceptable; The German law of disherison is in my though it has its defects too. My per- sonal opinion is that disherison should be allowed only for offences 'directed' against the testator (and •possibly' his spouse or issue, so long as they are very serious). The Spanish law in this regard also has some good aspects. So too I would include a provision saying that if the ground that is being availed of for disinheriting ~as occured over a certain period of time (say ten years ago or even less) the disherison should become inoperative. At least the more time has passed the stronger should be the presumption that the offence has been forgiven and forgotten, even if the will has not been rev~kd. and Casati e Russo, "Manualo del Diritto Civils Italiano", P. 171. But different opinions exist; see in particular, Borsari, op. cit., P. 87 on Actio Surragataria. - 122 -· A valid suggestion, already made, would be to exclude the person of 11 half 11 of his legitim or reserved portion by disherison. GRANT THE COURTS A DISCRETION In case of doubt, when it comes to prove the ground in Court, this should always go the disinherited person's favour. But perhaps, it would be best to grant the Courts a discretion, following in a way the English system, to decide whether there should be total exclusion of succession rights or otherwise; the ground would have to be proved beyond reasonable doubt in all cases, but total exclusion would depend upon the gravity of the offence, according to the circumstances of each case. The Court might decide to leave, for example, half of the la- gitim to the disinherited person in a case which does not deserve total exclusion even though the ground be proved. This would introduce a desired degree of flexibility. *1H* ** * **** ** * - 123 - 8 !_§_L I 0 G R A P H Y Baeck, Paul, Lo (ed 0 & tro) The General Civil Code of Austrian New York (1972). Baudry-Lacantinerie Trattato Teorico-Pratico di Diritto Civils? Volume 1, Delle Donazioni fra vivi e dei testamentio Milano (1930). Biggs, John M. 11 The Concept of Matrimonial Cruelty" London (1962). Bin 9 Marino. "La Diseredazione" - Contribute allo studio del testamento, Torino (1966). Biondi, Biondo. "Istituzioni di Diritto Romano" 3 8 Ed. Milano (1956). Borsari, Luigi. "Commentario del Cadice Civils Italiano", Volume III, Part I, Roma/Napoli, (1874). Bromley, P. r~. llfamily Law 11 3rd Ed., London (1966). Buckland, W.W. A Manual of Roman Private Lawii 2nd. Ed., London (1939). 11 0 11 11 A textbook of Roman Law from Augustus to Justinian 11 (1932). Burdess, Alberto. Manuale di Oiritto Private Romano 11 Tiorino {1964). Cachard, Henri. "French Civil Code" London (1930). 11 Caruana-Ganado Notes on Civil Law. Caruana, Professor Vittore. 11 Diritto Romano 11 • Casati, Ettore e Russo, Giacomo. "Manuals di Diritto Civils Italiano" 1a Ed. Torino (1950). Cattaneo .. 11 11 Cadice Civils Italiano" "Perino (1865). Chironi, G.P. 11 Istituzioni di Oiri tto Civils Ita8 liano11, Volume 2, 2 Ed. Torino (1912). Cohn, E.J. "Manual of German Law 11 , Volume I, London (1968 - 1971). Dain ow. "Civil Code of Louisiana", 2nd Ed. c. 1961. De Zulueta, F. 11 Domat. "Le Leggi Civili 11 Volume VIII, 1 Ed. Veneta (MDCCXCIV). Ferri, Luigi. Cornmentario del Cadice Civils a cura di Antonio Scialoja e Giuseppe Branca, Libra Secondo - Delle Successioni, Bologna/Roma (1964}. The Institutes of Gaiusn, Part II {CommenLary) Oxford (1953). 8 - 124 Girard 9 P.F. Elementare di Diri tto Romano 11 Milano ( 1909) .. Giuffre? (edo) "Enciclopedia del Dirittop" Harrison, A.R.W. 11 Hunter. "Roman Law" 3rd Ed. London (1885). n Il "~1anule XIII. T:he Law of Athens" Oxford (1968-71 ). Digesto I taliano 11 • Jolowicz. "Historical Introduction to Roman Law" Cambridge (1939). Kaser, Max. Roman Private Law 11 London (1968). th 11 The Elements of Roman lawn 4 Ed. London ( 1956). 11 Lee, R.w. Mamo, Prof. Sir Anthony. Marcade, v. "Criminal Law Notes 11 and Procedure". 11 Criminal iiSpiegazione Teoric-~Pat del Cadice Napoleons" Napoli (1871-1885). Mellows, A.R. "The Law of Succession 11 London (1970). Medina y Maranan. "Leyes Civiles de Espana 11 Madrid (1964). ({(-) Imperatoris Iustinianus Insti~Ho num", Libri Quattuor, Oxford 5 ( 1912 ). Moyle, J.B. 11 Muirhead, Jameso 11 Novissimo Oigesto Italiano 11 • 11 Nuovo Digesto Italiano 11 • Pacifici-Mazzoni, Emidio. Perozi~ Piromal~ s. Ed. "The Institutes of Gaius and Rules of Ulpian 11 Edinburgh (1880). "Istituzioni di Diritto Civt~ liano", Volume VI~ Part I, 5 Firenze (1914). ItaEd. Istituzioni di Diritto Romano", Volume II, 2a Ed. Roma (1928). 11 Pertile, Antonio. Storia · del Diri tto Italiano", Vo~ lume IV, 2a Ed. Bologna (1956-1966). Pharr, Clyde. 11 Jannitti Alfredo. 11 The Theodosian Code and Novels and the Sirmondian Constitutions" Princetown (1952). "Ingiuria e Diffamazione" Torino (1953). Planiol, Marcel et Ripert, Georges. Traite t-ratique de Droit Civil Francais11, Tome V per Trasbot (1952). Pothier, Robert Joseph. "Oeuvres de Pothier 11 Paris (1835). "Riv.ista di Diritto Civile 11 1965 and 1969. Salvestroni 9 Umberto. "Il Problema dell'indegnita' di succedere" Padova (1970). 11 - 125 Scalabrino, Ubaldo. Schultz, Fritz. Le Quote di Eredita' nella successions legittima e testamentaria" Milano ( 1948). 11 11 C1assical Roman Law 11 Oxford (1954) 1 s"E Ed. The Principles of German Civil Law" Oxford (1907). Schuster, J. 11 Serafini, Filippo. "Istituzioni di Oiritto Romano" 3 Firenze (1881). Saum, Henri. "Le Transmission de la succession testamentaire" Paris (1957). Szirmai. {Various authors) Law in Eastern Europe - The Law of Inheritance in Eastern Europe and in the People's Republic of China. 11 London ( 1959). Trabucchi, Alberto. "Istituzioni di Oiritto Civile 11 4a Ed., Padova (1948). Troplong. Diritto Civils Spiegato 11 9 Volume I, Sulle Donazioni tra vivi e su' testamenti; Napoli (1855). Vitali, Vittore. 11 8 Ed. 11 11 Delle Successioni legittime e testamentarie", Volume v, Napoli ( 1911 ) Q Watson, Alan. "The Law of Succession in the Later Roman Republic" Oxford (1971). Dizionatio Universals ossia Repertorio Ragionato di Giurisprudenza e Quistioni di Diritton, per F. Carillo Volume IV 1 Venezia (1836). 11 ~Merlin. Constitution of Malta. Criminal Code (Chapter 12). Civil Code (Chapter 23). - 126 LIST OF CASES ==:=::::::=:;=::.:======= MALTESE CASES DEALING EXPRESSLY WITH DISHERISON Attard Montalto, M.S. v. Dr. Attard Montalto (33,II,357) 57; 60; 83. Bartolo, Antonio v. Avukat Dotter Giorgio Camilleri ne. et • ( 30, I, 240) 104 • Bartolo, Giovanni v. Antonio Bartolo et. (29,II,880) 43; 88; 90; 104. (Muscat, George v. Antonio Muscat et.) (17-7·-1967, ceduta) 89. ON LEGITIM Farrugia, Carmel ne. et v. Concetta Mintoff et. (XXXIII, I, 472) Micallef, Antonio v. Giuseppina Grech (29, II, 1048) Micallef, Nob. Achille nom. ed v. P.L. Cost Fenech nom. (XXI, I, 196) Mifsud v. Mizzi (14-XII-1973) Sammut, Giuseppa v. Grazia Refalo et. (XXXVIII,I,551) Vassallo, Auv. Enrico Carlo ne, v. Giuseppina Mallia ed altri (XXVII, I, 451) Vella, Concetta v. Giuseppe Bugeja et. ON INSANITY AND CAPACITY TO MAKE A WILL Bartolo, Carmela et. v. Giuseppa Spiteri (XLII,II,1085) Bonavia v. Bonavia (20-X-1971) Formosa, Giuseppe et. v. Giuseppe Axiaq et. (30,I,176) Gauci, Alessandro v. Vincenzo Mercieca, P.A.A., C.E. ne ed. (XXV, I, 246) Mifsud v. Giordano (XXXVI, II, 404) "INGURIA GRAVE" Aquilina, Francesca v. George Galea et. (XXXVI,IV,813) Attard Montalto v. Attard Montalto (33, II, 357}; Cardona, ~ucia v. Lisa Grech (XXIX, IV, 936) Grech, Rosaria v. Caterina Pulo (XXXVII, IV, 1104)v Manche', Beatrice v. Al. Cassar (XL, IV, 1105)· ~J .) Montanaro, Anthony et. Michael Chetcuti (XLII,IV, 13:35Y ON PROSTITUTION de Munck Police v. C. Farrugia (33, IV, 586) Webb MARRIAGE UPON PARENTS' OPPOSITION Cremona, Vine. e Carm. v. Rosario Cremona ed. (VIII, 91) Naudi v. Micallef (XVI, II, 130) Sapiano 9 Carmel et. v. Maria Dolores Sammut (XLIII,II, 837) Vella, Dr. Vincenzo et. v. Joseph Vella et (29,II,1225) OTHER MALTESE CASES QUOTED Attard v. Attard (XXXI, I, 200) Camilleri, Kan. Dekan Francesco et. v. Salvina Camilleri (XXXIII, I, 73) Piscopo Carmelo v. Beniamino Sultana (XXX,II,161) Police v. G. Ellul (XXXII, IV, 763) Schembri Nicolina v. Nicola Micallef (XXIV,II,264) Zammit, Antonio et. v. John Luigi Apap (29,II,25) Vella, Clara v. Maria Costantina Mattei (XXV,I,56) 42. 42. 42. 42; 106. 42. 43. 42. 51. 50. 50. 50. 50. 60. 60. 59. 59. 58. 58. 62. 63. 62. 67. 66. 66. 66. 80. 92. 80. 78. 106. 108. ?2. ITALY Cass., 20 June, 1967, n. 1458 FRANCE Cass., s., 69. 1. 153, D., 69. 1. 175. Lyons s., 87. 2. 101, D., 86. 2. 229 30. 30. ENGLISH CASES Re Andrews, Andrews v. Smorfitt Re Blanch, Blanch v. Hornhold Re Clarl<e, Glarl<e v. Roberts 26. 26. 24. 31. - 127 - Re, E. v. E. Fowler v. Fowler Re Franks, Franks v. Franks Re Goodwin, Goodwin v. Goodwin Atkins Case Re Howell, Howell v. Lloyds Bank Ltd. Re Inns, Inns v. Wallace Re Joslin, Joslin v. Murch Kalsefsky Case de Munck Re Pointer, Pointer arx:I Shon-field v. Edwards Se Sivyer, Sivyer v. Sivyer Be Smallwood, Smallwood v.·Martins Bank Ltd. Re Watkins, Watkins v. Watkins Webb *********** *****'--l-*** ******* ***** *** '** * 27. 82. 25. 25. 82 .. 25. 28. 27. 82. 62. 28. 27. 24. 27. 62.

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