On the 19th day of October 2023, the Court of Appeal (hereinafter the “COA”) overturned the First Hall Civil Court’s (hereinafter the “FHCC”) judgement on the applicable law in cross-border succession.[1]
The crux addressed by the COA in its ruling revolved around deciding whether to adopt the FHCC approach, which examines Maltese jurisprudence through a system of scission, or to view succession as a unified concept under EU Regulation 650/2012 (Brussels IV) (hereinafter as the “Regulation”). The regulation aims to establish clarity regarding the applicable law for governing successions. It harmonizes laws across the EU to streamline and reduce costs associated with cross-border succession matters.
The applicability of the Regulation mainly revolves around whether there are any special rules imposing restrictions concerning or affecting the succession in respect of certain assets due to economic, family, or social considerations and whether the succession of the deceased in question is subject to the Regulation.
The COA pointed out that the claims of past jurisprudence deeming the applicability of lex situs[2] or lex domicilii[3] is of irrelevant nature due to the fact that this jurisprudence was before the implementation of the said Regulation and that the Regulation could only be put aside on the basis of the aforementioned factors. Based on this rationale, the COA applied article 21 of the Regulation, stating that the applicable law shall be the State in which the deceased had his habitual residence at the time of death, which in turn merits the FHCC to identify which such place this was.
Hence, the decision was to apply article 21 of the Regulation to this cross-border succession whilst returning the case back to the FHCC to determine the habitual residence.
Nevertheless, this ruling implies that principles of public policy and the primary foundation of our succession law; Common Law, are relegated due to adherence to this Regulation. Yet, given that our legal framework integrates elements of both common law and continental law, maintaining a delicate balance and drawing from the strengths of both legal traditions, should incorporation into the Maltese legal system be considered?
A possible option would be for Parliament to enact a provision that imposes a limitation on the enforceability of the Regulation based on considerations of public policy, thereby granting precedence to the laws of the Republic of Malta. An instance of a similar sort can be found in Chapter 583 of the Laws of Malta, where Article 56A establishes that Maltese laws take precedence over any other law to its contrary, by virtue of the principle of public policy.
By enacting such a provision (akin to Article 56A of Chapter 583 of the Laws of Malta), the legislator would establish a situation where, in accordance with Maltese public policy, any foreign provision conflicting with Maltese succession laws would be superseded by Maltese law.
The aforementioned proposal essentially implies that the Maltese government would have the authority to regulate cross-border succession autonomously, regardless of conflicting laws, based on Maltese public policy considerations.
For more information or assistance please contact Dr Robert Tufigno and Dr Delilah Vella.
[1] ‘Leon-John Cutajar u b’digriet tal-21 ta’ Ġunju 2022 Giovanna sive Jeanette Pocock assumiet l-atti tal-kawża odjerna bħala mandatarja speċjali tal-assenti Leon-John Cutajar vs Dr Joseph Carbone maħtur kuratur deputat sabiex jirrapreżenta lill-assenti Doris Cutajar, Anne Elizabeth sive Annalise Cutajar u Helen Joan Cutajar’ 552/21/1AJD.
[2] The Law of the state where assets are located for the purpose of conflicts of law and/or jurisdictional disputes.
[3] The law of the domicile by which the rights of the person will be governed.