How is a will drawn up and can I register it?
Last update: 10/3/2012
Whoever would like to draw up a will must comply with specific forms. Maltese law has, among others, the following types of will:
- a public will which is received by a civil law notary in the presence of two witnesses in the same manner as any other notarial instrument, or
- a secret will which shall be delivered by the testator to a civil law notary, or, in the presence of the judge or magistrate sitting in the court of voluntary jurisdiction, to the registrar of such a court, in writing, and signed by the testator, or by someone else in his/her presence and by his/her direction.
In a cross-border situation, a will is, in principle, valid if it complies with the law of the State where the will was drawn up.
There is no register of wills in Malta. However, notarial (public or secret) wills are archived in the Governmental Notarial Archives, secret wills are received and delivered to the Court of voluntary jurisdiction by the notary. The judge then takes the secret will and puts it in a special vault.
Information about how to keep, to register and to search for a will are also available on the website of the European Network of Register of Wills Association (ENRWA) in the section “Information sheet”.
Detailed information
What are the conditions governing the validity of a will as regards its form and substance?
§ IV. OF THE FORM OF WILLS OF ORDINARY WILLS
A will may be either public or secret. (1) Saving any other provision of this Code, a public will is received and published by a civil law notary in the presence of two witnesses. (Vide Art 654. 655).
656. (1) A secret will may be printed, type-written or written in ink either by the testator himself or by a third person. (2) Where the testator knows how to, and can write, the will shall, in all cases, be signed by him at the end thereof. (3) Where the testator does not know how to, or cannot write, the provision of article 663 shall apply.
What are the conditions governing the validity of a will drawn up in another State?
Wills drawn up in another state are recognized as valid wills if they have been made in accordance with the formalities established in the country where the will has been signed.
Are agreements relating to a future inheritance authorised? Who can conclude such an agreement? What form must be respected?
Agreements on future successions are prohibited.
Are there other possibilities for settling a succession?
Joint will (unica charta) between spouses are very common and by their very nature are considered as being of a contractual nature.
Dotations in contemplation of Marriage: 1794. Any person not being under a legal disability may, in contemplation of a certain and determinate marriage, but before such marriage, dispose of the whole or of a part of the property which he may leave at the time of his death, in favour of the future spouses or one of them as well as in favour of the children to be born of their marriage.
1795. (1) The donation referred to in the last preceding article is irrevocable in this sense only, that the donor can no longer dispose, under a gratuitous title, of the things included in the donation, except as regards small sums by way of remuneration or otherwise, unless he has reserved to himself a more ample power of disposing. (2) The donor, however, shall be at liberty, up to the time of his death, to dispose under an onerous title of the things included in the donation; and any renunciation of such power is null.
1239. It shall not be lawful for the future spouses to enter into any agreement or to make any waiver tending to vary the legal order of succession either with respect to themselves in regard to the succession of their children or descendants, or with respect to the children between themselves, saving such testamentary dispositions and such donations as are allowed under the provisions of this Code.
1240. (1) A promise made in a marriage contract by the parent of one of the future spouses to such future spouse –
(a) not to leave to such future spouse out of his or her estate a portion smaller than that which such future spouse would take on an intestacy; or
(b) not to diminish such portion by any donation in favour of his or her other children or of any other person; or
(c) not to give or leave, by donation or will, to any of his or her other children more than that which he or she would give or leave to such future spouse,
shall be valid.
(2) It shall also be lawful for either of the future spouses to renounce the succession of any of his or her own parents or other ascendants in return for what is given to him or her by such parent or other ascendant by way of donation in contemplation of marriage.
There is the possibility of settling the property in trust and also of setting up a foundation by public deed. In the latter case there is also a registration requirement.
How and where can I register a will? What is the effect of registration?
In the case of a public will the civil law notary is bound to register the will in the Public Registry within 15 days of his/her having received it.
Regarding Secret wills delivered to the civil law notary, the civil law notary is bound to deliver these to the Court of Voluntary Jurisdiction within 4 days of his/her having received it.
