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The Civil Code (Amendment) (No. 2) Act, 2003 (Bill No. 15)

C 1113

A BILL

entitled

AN ACT further to amend the Civil Code, Cap. 16.

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows>-
1. (1) The short title of this Act is the Civil Code (Amendment) (No. 2) Act, 2003. This Act shall be read and construed as one with the Civil Code, hereinafter referred to as “the Code”.
(2) This Act shall come into force on such date as the Minister responsible for justice may by notice in the Gazette establish, and different dates may be so established for different provisions and different purposes thereof.
2. The table entitled “Arrangment of Code” appearing immediately before article 1 of the Code shall be amended as follows>-
(a) for the words appearing in the second column therein appearing in the second Column hereunder and the corresponding words, where any, appearing in the first and third column thereof appearing in the first and third Column hereunder there shall be substituted the words, where any, appearing in the fifth, fourth and sixth column hereunder, respectively>-

Short title and commencement.

Cap. 16.

Amendment to Table entitled “Arrangement of Code”.

2

II Filiation of II Filiation of

Legitimate Children Conceived

Children 78-85 or Born in Wedlock 78-85

or Born in Wedlock 86-112

Sub-title Of Legitimation 101-112 Sub-title Of the Presumption that

§II §II a Person was Conceived

or Born in Wedlock 101-112

Sub-title II Of Acts of Birth 272-292 Sub-title II Of Acts of Birth 272-292A Sub-title Of the Nature of Sub-title Of the Nature of

3

Of Illegitimate

Children 631-646

Sub-title Of Regular Sub-title Of Succession by

§I Successions 808-816 §I Descendants and the

C 1115
(b) The words appearing in the Second Column thereof shown hereunder and the corresponding words, whereany, appearing in first and Third Column thereof in respect thereof shall be deleted>-
Of Succession by Legitimate Descendants Of Succession by Legitimate Ascendants Of Succession by Legitimate Collaterals Of the Rights of Illegitimate Children
Over the Property of their Parents, and of Succesion of Illegitimate
Children dying without Issue
Of the Rights of the Surviving Spouse
Of Settlement of Dowry
Of the Rights of the Husband over the Dowry
Of the Inalienability of the Dowry
Of the Restitution of the Dowry
Of Dower (Dotarium).
C 1116

Amendment of article 4 of the Code.

Amendment of articles 76 and

77 of the Code.

Amendment of heading to Sub- title II of Title

II of Book First of the Code.

Amendment of article 78 of the Code.

Amendment of articles 79, 81

and 84 of the Code.

3. Article 4 of the Code shall be amended as follows>
a) in sub-article (1) and (2) thereof the words “maiden surname” shall be substituted by the words “maiden surname or the surname of her predeceased spouse”<
b) in sub-article (3) thereof immediately after the words “surname of the mother”, there shall be added the words “or the surname of her predeceased spouse”<
c) immediately after subarticle (5) thereof there shall be inserted the following subarticle >
“(6) Where a wife intends to retain the surname of her predeceased husband after remarriage, she shall, before re- marriage, so declare her intention when applying for the publication of the bonus in accordance with the Marriage Act and in lieu of the declaration in the Act of Marriage refered to in subarticle (4) she shall subscribe to a decleration, in Form R contained in Part II of the Schedule to the Code and containing the particulars therein indicated, such form shall be delivered to the Public Registry together with the Act of Marriage and shall be signed by the spouses and countersigned by all the other signatories in the Act of Marriage.”.
4. For the words “the legitimacy” in articles 76 and 77 of the Code, there shall be substituted the words “the filiation”.
5. For the heading to Sub-title II to Title II of Book First of the Code appearing before article 78 thereof, there shall be substituted the following>
“OF THE PROOF OF FILIATION OF CHILDREN CONCEIVED OR BORN IN WEDLOCK”.
6. For the words “legitimate children” in article 78 of the Code, there shall be substituted the words “children conceived or born in wedlock”.
7. In articles 79, 81 and 84 of the Code, and in the marginal note thereto, for the words “legitimate child” wherever they occur there shall be substituted the words “child conceived or born in wedlock”.
8. For the heading of Sub-title III of Title II of Book First of the Code appearing immediatley before article 86 thereof, there shall be substituted the heading “OF THE FILIATION OF CHILDREN CONCEIVED AND BORN OUT OF WEDLOCK AND OF THE PRESUMPTION THAT A PERSON WAS CONCEIVED OR BORN IN WEDLOCK”, and in the sub-heading immediately before article 86 for the words “ILLEGITIMATE CHILDREN” there shall be substituted the words “CHILDREN CONCEIVED AND BORN OUT OF WEDLOCK”.
9. Article 86 of the Code shall be amended as follows>
(a) in the marginal note thereof for the words “illegitimate children” there shall be substituted the words “children conceived or born out of wedlock”<
(b) for the words “An illegitimate child”, there shall be substituted the words “A child conceived and born out of wedlock”<
(c) immediately after the proviso thereto there shall be added the following further proviso>
“Provided further that the acknowledgement of a child born out of wedlock by a person claiming to be the father of the child, made separately from the mother, shall not have affect and shall not be registered unless the mother of such child, or her heirs if she is dead, and the child himself if he is of age, shall have been served with a judicial act by any person interested stating that such person intends to apply for the registration of such acknowledgement and the mother or her heirs as the case may be, and the child shall not have within a period of two months from such service by another judicial act agreed to such registration. Such judicial acts shall in each case be served on the director of the Public Registry<
Provided further that were the mother or the child where he is of age does not as aforesaid agree to such registration, any person interested may proceed by writ of summons before the competent court against the person or persons who shall not have so agreed, for the court to declare that the person making the acknowledgement is the father of the child and ordering the registration of such acknowledgement.”.
10. Article 87 of the Code shall be amended as follows>
(a) for the words “an illegitimate child” in subarticle (1) thereof, there shall be substituted the words “a child conceived and born out of wedlock”< and
C 1117

Substitution of heading of Sub-title III of Title II of Book First of the Code and deletion

of

sub-heading immediately before article 86.

Amendment of article 86

of the Code.

Amendment of article 87

of the Code.

C 1118

Substitution of article 89 of the Code.

(b) after the words “or by both” in subarticle (2) thereof, there shall be inserted the words “or made by a minor,”.
11. For article 89 of the Code, there shall be substituted the following>

“A child conceived and born out of

wedlock of a spouse,

89. A child conceived and born out of wedlock born to a spouse before or during the marriage, and acknowledged during a marriage may not be brought into the matrimonial home, except with the consent of the other spouse, unless such

born before or other spouse has already given his or her consent to the

during a

marriage.

acknowledgement.”.

Amendment of article 90

of the Code.

Amendment of article 91 of the Code.

Amendment of article 92

of the Code.

12. For the words “an illegitimate child” in article 90 of the Code and for the words “illegitimate child” in the marginal note thereto, there shall be substituted in each case the words “a child conceived and born out of wedlock”.
13. For the words “the illegitimate child” in article 91 of the Code, there shall be substituted the words “a child conceived and born out of wedlock”.
14. Article 92 of the Code shall be amended as follows>
(a) for the words” An illegitimate child” in sub-article (1) thereof there shall be substituted the words “ A child conceived and born out of wedlock”<
(b) for the words “An illegitimate child” in subarticle (4) thereof, there shall be substituted the words “A child conceived and born out of wedlock”<
(c) for the words “illegitimate child” in the marginal note thereto, there shall be substituted the words “a child conceived and born out of wedlock”<
(d) for the words “a natural child” in subarticle (5) thereof, there shall be substituted the words “a child conceived and born out of wedlock”< and
(e) immediately after subarticle (5) thereof there shall be added the following subarticle>
“(6) Notwithstanding the previous provisions of this article or of any other article in this code, where the paternity of a person has been acknowledged the filiation of a person
has been declared by the Court, or the presumption referred to in articles 101 to 112 has been made to apply, any person who in consequence of such acknowledgement, declaration or the application of the presumption is to assume a surname other than the surname used by such a person before such acknowlegement, filiation or application of the presumption, or his legitimate representative, may if such person is over the age of four years, request the Court by writ of summons against the Director of the Public Registry to be allowed to continue to use such other surname, and the Court if it is satisfied that third parties will not be prejudiced thereby shall accede to such request and order the Director to make an annotation of its judgement on the relevant Acts of Birth of the person so acknowledged or whose filiation has been so declared or in relation to whom the said presumption is to apply.”.
15. For articles 93, 94 and 95 of the Code there shall be substituted the following>
C 1119

Substitution of articles 93, 94 and

95 of the Code.

“Duty of parents

and children conceived and

born out of wedlock.

93. Parents of children conceived and born out of wedlock shall have in respect to such children and their descendants the same duty to maintain and educate them as they have with regard to children born or conceived in wedlock, and such children shall have in respect of their ascendants and other relatives the same rights and duties as children born or conceived in wedlock.”.
16. In article 97 of the Code for the words “a legitimate child” there shall be substituted the words “a child conceived or born in wedlock”.
17. Article 98 of the Code shall be repealed.
18. In article 99 of the Code for the words “an illegitimate child” there shall be substituted the words “a child conceived and born out of wedlock”.
19. In the sub-heading “§II. Of Legitimation” immediately after article 100A of the Code, for the words “Of Legitimation” there shall be substituted the words “Of the Presumption that a Person was Conceived or Born in Wedlock”.

Amendment of article 97

of the Code.

Repeal of article 98

of the Code.

Amendment of article 99 of the Code.

Substitution of

Sub-Heading

“Of Legitimation” immediately after article 100 A of the Code.

C 1120

Substitution of article 101

Of the Code.

20. For article 101 of the Code there shall be substituted the following>

Where presumption arises.

101. Where the parents of children conceived and born out of wedlock subsequently marry, or where the court of voluntary jurisdiction so decrees, such children shall be deemed iuris et de iure to have always been conceived or born in wedlock”.

Amendment of article 102

of the Code.

Amendment of article 103

of the Code.

Amendment of article 104

of the Code.

Substitution of article 105

of the Code.

21. In article 102 of the Code for the words “legitimation by subsequent marriage” there shall be substituted the words “ The presumption arising out of subsequent marriage in accordance with the preceding article” and in the marginal note thereof the word “legitimation” shall be substituted by the word “presumption”.
22. Article 103 of the Code shall be amended as follows>
(a) in article 103 of the Code for the words “children legitimated by subsequent marriage” and “legitimate children” there shall be substituted the words “children deemed to have been conceived or born in wedlock by the subsequent marriage of their parents” and “children conceived or born in wedlock ” respectively< and
(b) the marginal note thereof shall be substituted by the following> “Effects of Presumption as a consequence of subsequent marriage”.
23. In article104 of the Code for the words “legitimate children” there shall be substituted the words “children conceived or born in wedlock”.
24. Article 105 of the Code shall be susbtituted by the following>

“Descendants of children presumed to be

conceived or born in wedlock in consequence

105. The marriage of the parents shall bring about the
presumption that even their predeceased children were conceived or born in wedlock, and such presumption shall also operate in favour of the descendants of the latter, whether conceived or born in wedlock, or so presumed to be by

of subsequent subsequent marriage, provided such predeceased children shall

marriage.

have been acknowledged as provided in article 102, or their paternity or maternity shall have been declared by a judgement of the Court.”.
25. In article 106 of the Code , for the word “Legitimation by” wherever they occur even in the marginal note, there shall be substituted the words “The presumption in virtue of” .
26. Article 107 of the Code shall be amended as follows>
a) for the word “legitimation referred” there shall be substituted the word “presumption referred”.
b) for the word “legitimation by” in the marginal note there shall be substituted the words “presumption in virtue of”< and
c) in paragraph (a) thereof for the word “legitimate” there shall be substituted the words “have such presumption apply to”.
27. For article 108 of the Code there shall be substituted by the following>
C 1121

Amendment of article 106

of the Code.

Amendment of article 107

of the Code.

Substitution of article 108

of the Code.

“Power of Court to refuse presumption.

108. The Court shall have power, according to circumstances, to refuse to apply the presumption in virtue of article 102, where the applicant can make such presumption applicable in favour of his child by subsequent marriage, or has children who were conceived or born in wedlock, or so presumed by subsequent marriage, or descendants of such children.”.
28. In article 109 of the Code including in the marginal note thereof, for the word “legitimation”, there shall be substituted the word “presumption”.
29. Article 110 of the Code shall be amended as follows>
(a) for the words “legitimated by decree of Court” in the marginal note thereof there shall be substituted the words “presumed to have been conceived or born in wedlock in virtue of decree of Court”<
(b) sub-article 1 thereof shall be substituted by the following> (1) “Subject to the provisions of sucarticle 92(6) a child
in whose favour there is a presumption in virtue of a decree of
the court shall assume the surname of the parent upon whose demand he shall have been so presumed”< and
(c) in sub-article (2) thereof, for the word “legitimation”
there shall be substituted the word “presumption”.

Amendment to article 109

of the Code.

Amendment to article 110

of the Code.

C 1122

Amendment of article 111

of the Code.

Substitution of article 112

of the Code.

30. Article 111 of the Code shall be amended as follows>
(a) in the marginal note thereof for the words “legitimation by” there shall be substituted the words “presumption in virtue of”<
(b) in sub-article (1) thereof , for the words “Legitimated child” there shall be substituted the words “ the child in whose favour operates a presumption in virtue of article 102”, and for the words “a legitimate child” there shall be substitued the words “a child concieved or born in wedlock”.
31. For article 112 of the Code there shall be substituted the following>

“Child may demand presumption after death

of parent.

112. Where one of the parents, has in a will or other public deed, declared his or her wish to have the presumption that a child was conceived or born in wedlock, applicable to a child born to him or her out of wedlock, such child, may after the death of such parent, make a demand to have such applicable on his regard presumption, saving the power of the court as provided in article 108, in case the deceased shall have left children, conceived or born in wedlock, or so presumed to be in virtue of a subsequent marriage.”.

Amendment of article 113 of the Code.

Amendment of article 115

of the Code.

Amendment of article 122 of the Code.

Amendment of article 126

of the Code.

32. For paragraph (c) of subarticle (2) of article 113 of the Code, there shall be substituted the following>
“(c) “children conceived and born out of wedlock” means children so conceived and so born or such, children in whose favour the presumption refered to in articles 101 to 112 of this Code does not apply, and who have not in either case been adopted<”.
33. In article 115 of the Code the words “an illegitimate person>” wherever they occur shall be susbtituted by the words “a person conceived and born out of wedlock” .
34. In article 122 of the Code, for the word “illegitimate”, wherever it appears, there shall be substituted the words “conceived and born out of wedlock”.
35. Article 126 of the Code shall be amended as follows>
(a) in the marginal note thereof for the word “Legitimation
” there shall be substituted the words> “Presumption that a person was conceived or born in wedlock”< and
(b) in sub-article (1) thereof for the words “a legitimated person” there shall be substituted the words “a person presumed to have been conceived or born in wedlock”.
36. The words “legitimate or illegitimate” in article 227 of the Code shall be deleted.
37. Immediately after article 257 of the Code there shall be inserted the following new articles>
C 1123

Amendment of article 227 of the Code.

Addition of new article 257A to

257D to the Code.

“Action for an

annotation in the

indication of sex particulars appearing in an

act of birth.

Where court shall

257A. (1) It shall be lawful for any unmarried person domiciled in Malta to bring an action for an annotation regarding the particulars relating to sex which have been assigned to him or her in the act of birth.
(2) Before delivering judgement, the Court shall appoint experts to verify whether the person who has brought the action has, in fact, undergone an irreversible sex change from that indicated in the act of birth or has otherwise always belonged to such other sex.
(3) Any action shall be brought against the Director of Public Registry by way of writ of summons before the Civil Court First Hall or the Court of Magistrates (Gozo) (Superior Jurisdiction) as the case may be.
(4) The provisions of subarticle (1) of this article shall apply to foreign acts of birth registered in Malta.
(5) All expenses relating to such litigation including those incurred by the Director of Public Registry shall be borne by plaintiff.
257B. (1) The court shall allow the plaintiff’s request

allow request. if it is of the opinion that it has been sufficiently established

that the plaintiff belongs to the sex claimed by him and that the
plaintiff’s condition can be considered as permanent.
(2) The court may also order an annotation in the name or names of the plaintiff if it has allowed the request.

Change in act of birth.

257C. (1) The annotations in an act of birth, referred to in article 257B, shall be effective as from the day when the Director of Public Registry shall enter such modification in the act of birth.
C 1124

Consequential correction of identity card.

Cap. 258.

(2) The annotation in the indication of the sex in the act of birth shall in no way affect the family relationships which exist at the date referred to in subarticle (1) of this article and any other obligations arising out of parenthood or any other cause.
(3) The provisions of paragraph (a) of subarticle (2A) of article 251 of this Code shall apply in the case of persons in relation to whom a declaration is made under article
257B who request an extract of their acts of birth. The extract shall indicate the particulars resulting from such annotations.
257D. (1) A person in respect of whom whose changes in particular relating to his of sex has been annotated in accordance with the preceding provisions of this Code shall, without delay after the date referred to in subarticle (1) of article
257C of this Code, report the fact to the authorised officer
under the Identity Card Act who shall issue a new identity card indicating the sex and name in accordance with the declaration made by the Court.
(2) A person whose change of sex has been annotated as aforesaid shall also, on the payment of such fee as may be prescribed, have the right, on the production of the relative Court judgement, to demand that any public authority, which has or may issue any certificate or document relative to him, provide him with a fresh certificate or document indicating the sex and name in accordance with the declaration made by the Court as aforesaid.”.

Amendment to article 279

of the Code.

38. Article 279 of the Code shall be amended as follows>
(a) for the marginal note thereto there shall be substituted the following>
“Children conceived and born out of wedlock”<
(b) for the words “illegitimate child” in subarticle (1) thereof there shall be substituted the words “child conceived and born out of wedlock”< and
(c) for subarticle (2) thereof shall be substituted the following> “(2) Where the child is not acknowledged jointly by
both the father and the mother, the provisions of article 86
shall apply.”.
39. In article 281 of the Code, and in the marginal note thereto, for the words “an illegitimate child” and “of illegitimate child” wherever they appear, there shall be substituted the words “a child conceived and born out of wedlock” and the words “of a child conceived and born out of wedlock” respectively.
40. Article 289 of the Code shall be amended as follows>
(a) for the words “illegitimate child” in the marginal note thereto, there shall be substituted the words “a child conceived and born outside wedlock”<
(b) in subarticle (1) thereof>
(i) for the words “an illegitimate child” there shall be substituted the words “a child conceived and born out of wedlock”< and
(ii) for the words “illegitimate father” there shall be substituted the word “father”.
41. Article 290 of the Code shall be amended as follows>
(a) in the marginal note thereof for the word “legitimation“ there shall be substituted the words “presumption that a person was conceived or born in wedlock”<
(b) in subarticle (1) thereof for the words “ The legitimation of an illegitimate child” there shall be substituted the words “The presumption applicable to a person conceived and born out of wedlock in virtue of article 102,”<
(c) for subarticle (2) thereof there shall be substituted the following>
“ (2) In the case of such presumption, it shall be stated in the note whether the presumption took place by subsequent marriage or by a decree of the competent court.”< and
(d) in sub-article (3) thereof for the word “legitimation” there shall be substituted the word “presumption”.
C 1125

Amendment of article 281

of the Code.

Amendment of article 289

of the Code.

Amendment of article 290 of the Code.

C 1126

Amendment of article

291 of the Code.

Substitution of article

292 of the Code.

42. Article 291 shall be amended as follows>
(a) in sub-article (1) thereof for the words “or legitimation” there shall be substituted the words “or presumption in virtue of articles 101 to 112”< and
(b) in sub-article (2) thereof, for the word “legitimation by”
there shall be substituted the word “presumption arising out of”.
43. For article 292 of the Code there shall be substituted the following>

“Presumption in virtue of subsequent marriage.

292. Where a presumption arising out of subsequent marriage applies to a child conceived and born out of wedlock, and such marriage took place prior to the registraton of the birth of such child, the act of birth of such child may be drawn up directly as in the case of a child conceived or born in wedlock.”.

Addition of new article 292A to the Code.

44. Immediately after article 292 of the Code there shall be inserted the following article>

“Surname

of the child.

292A. The person giving notice of the birth shall also deliver a declaration by the parents of the child indicating the surname to be used by the child, and such surname shall be registered in the column under the heading “Name or names by which the child is to be called” in the act of birth immediately after such name or names. Where no such declaration is made in the case of a child conceived and born in wedlock the father’s surname shall be presumed to have been so declared and in the case of a child conceived and born out of wedlock the maiden surname of the mother shall be presumed to be the surname so declared.”.

Amendment of article 495 of the Code.

45. Immediately after subarticle (2) of article 495 of the Code there shall be added the following new subarticle>
“(3) Where the heirs or legatees in an inheritance continue to hold in common, property deriving from the succession for more than ten years and no action has been instituted before a court or other tribunal for the partition of the property within ten years from the opening of the succession, each co-owner shall be deemed to be co-owner of each and every item of property so held in common and the provisions of article 912 shall no longer apply.”.
46. Immediately after article 495 of the Code there shall be added the following new article 495A.
C 1127

Addition of new article 495A

to the Code.

“Where co- owners

fail to agree in

respect of a sale of

a thing held in common.

495A. (1) Where co-ownership has lasted for more than ten years and none of the owners has instituted an action before a court or other tribunal for the partition of the property held in common, and the co-owners fail to agree with regard to the sale of any particular property, the court shall if it is satisfied that none of the dissident co-owners are seriously prejudiced thereby, authorise the sale in accordance with the wish of the majority of the co-owners regard being had to the value of the shares held by each co-owner.
(2) The request to the court shall be made by application which shall be accompanied by a declaration of the owners who agree to the sale as well as a prospectus showing the number and value of the shares held by each of them as well as the terms and conditions under which the sale is to take place. The application shall also indicate the date on which the co-ownership arose and the circumstances thereof.
(3) The application shall be served on the co- owners who do not agree with the sale as well as on curators to be appointed by the court to represent such of the co-owners who are unknown or who cannot be traced. The registrar shall cause a copy of the application to be published in the Gazette and in one daily newspaper.
(4) A declaration that any co-owner is not known or cannot be traced shall be confirmed on oath by each of the applicants.
(5) The other co-owners as well as the curators may within twenty days from the service upon them of the application, or in the case of a co-owner who has not been served with the application within twenty days from the last publication referred to in subarticle (3) hereof, oppose the sale stating the serious prejudice that they or the co-owners represented by them may suffer because of the sale.
(6) In assessing whether there will be serious prejudice to any of the co-owners, the court shall take into consideration all relevant factors including the value of the property and the price of the sale, and may for this purpose order that the property be appraised in accordance with the
C 1128

Cap 12.

provisions of article 306 of the Code of Organization and
Civil Procedure.
(7) The court shall determine the application, and where it determines that the sale is to take place, it shall determine the price or other consideration for the sale and it shall further -
(a) determine the time, date and place, when and where the transfer is to take place<
(b) where the sale is to be effected by a public deed, appoint a notary to publish the deed<
(c) appoint a curator, even among the co-owners themselves, to represent any of the co-owners who fail to appear on the notarial deed or other instrument of transfer.
(8) The court may, on an application by any party interested change the date, time or place where the transfer is to take place.
(9) If more than one co-owner opposes the transfer, the court shall order the sale by licitation of the property in accordance with the provisions of article 521 and 522 of the Code<
Provided that>
(a) an appraisement shall only be made if so ordered by the Court in terms of subarticle (6) of this article<
(b) in the advertisement contemplated in article
313 of the Code of Organization and Civil Procedure, the value of the consideration indicated for the proposed transfer is to be stated and indicated as “value given by the co-owners” together with the value established by the appraisement in terms of subarticle (6) where such appraisement is made<
(c) the adjudication shall not be made on the day of the auction if there is no bid exceeding the value given by the co-owners or one moiety of the appraisment, whichever is the higher<
(d) where all the co-owners agree the court shall order that strangers be not invited to bid.”.
47. For subarticle (2) of article 586 of the Code there shall be substituted the following>
“(2) Nothing in subarticle (1) of this article shall be construed as prohibiting the entering into a contract of life assurance by a person on his own life stipulating (whether on the signing of the insurance policy or during the term of the policy) that the proceeds and any benefit arising from the insurance policy (whether payable on a definite maturity date or on the death of the said person) be payable to a beneficiary who is not the person whose life is insured.”.
48. Immediately after subarticle (2) of article 592 of the Code, there shall be added the following new subarticles>
“(3) A will unica charta shall be drawn up in a manner that the provisions with regard to the estate of one of the testators are drawn up in a part separate from those containing the provisions of the other spouse.
(4) The non-observance of the provisions of subarticle (3) of this article shall not cause the nullity of any provision of the will if it is otherwise intelligible< but the notary drawing up the will shall be liable to a fine of one hundred liri to be imposed by the Court of Revision of Notarial Acts.”.
49. For articles 593 and 594 of the Code there shall be substituted the following>
C 1129

Amendment of article 586

of the Code.

Amendment of article 592

of the Code.

Substitution of articles 593 and

594 of the Code.

“Where a spouse revokes a will

unica charta.

593. (1) Where, by a will unica carta, the testators shall have bequeathed to each other the ownership of all their property or the greater part thereof with the express and specific condition that if one of the testators revokes such bequest he shall forfeit any right in his favour from such joint will, the survivor, who shall revoke the will with regard to such bequest, shall forfeit all rights which he or she may have had in virtue of such will on the estate of the predeceased spouse.
(2) The forfeiture mentioned in subarticle (1) can also be ordained in the case where, by his or her act, the said bequest cannot be effectual with regard to his or her estate.
(3) The notary drawing up a will unica charta is bound on pain of a fine of one hundred liri to be imposed by
C 1130

Effects of revocation.

the Court of Revision of Notarial Acts to explain to the testators in a will unica charta the meaning and effect of this article and of article 594, and enter in the will a declaration to that effect.
594. In the cases referred to in subarticles (1) and (2) of article 593 the ownership of the property bequeathed to the spouse incurring the forfeiture, shall, unless otherwise ordained by the other spouse, vest in the heirs instituted by such other spouse, or if no heirs are so instituted his heirs-at-law. The spouse who has forfeited the property as aforesaid shall, however, retain the usufruct over such property.”.

Amendment of article 596

of the Code.

Amendment of article 597

of the Code.

50. Article 596 shall be amended as follows>
(a) for the words “Saving the provisions of the Mortmain Act, any person” there shall be substituted the words “Any person”< and the words “Cap. 201.” in the marginal note thereto shall be deleted<
(b) the present provision shall be renumbered subarticle (1)
thereof< and
(c) immediately after subarticle (1) thereof as renumbered there shall be added the following new sub-article>
“(2) All children and descendants without any distinction are capable of receiving by will from the estate of their parents and other ascendants to the extent established by law.”.
51. Article 597 of the Code shall be amended as follows>
(a) in paragraph (a) thereof, for the word “fourteenth” there shall be substituted the words “sixteenth”< and
(b) for paragraph (b) thereof there shall be substituted the following>
“(b) those, who, even if not interdicted are not capable of understanding and volition, or who, because of some defect or injury, are incapable even through interpreters of expressing their will>
Provided that a will can only be made through an interpreter if it is a public will and the notary receiving the will is satisfied after giving an oath to the interpreter that
such interpreter can interpret the wishes of the testator correctly<”.
52. Immediately after subarticle (2) of article 600 of the Code, there shall be added the following subarticle>
“(3) A person born within three hundred days from the date of the opening of succession shall, in default of proof to the contrary, be presumed to have already been conceived at the time of the opening of succession.”.
53. For articles 602 to 604 of the Code there shall be substituted the following>
C 1131

Amendment of article 600 of the Code.

Substitution of articles

602 to 604 of the Code.

“All children may receive by will.

602. All the children of the testator whether born in wedlock, out of wedlock or adopted or whether or not the presumption referred to in articles 102 to 112 applies to them may receive by will from the testator.”.
54. For paragraphs (a) and (b) of subarticle (1) of article 605 of the Code there shall be substituted the following>
“(a) wilfully killed or attempted to kill the testator, or the spouse, or an ascendant or descendant of the testator< or
(b) charged the testator, or the spouse, or an ascendant or descendant of the testator before a competent authority with a crime punishable with imprisonment, of which he knew the testator, or the spouse, or the ascendant or descendant of the testator to be innocent< or”.
55. In article 608 of the Code and in the marginal note thereto, for the words “the legitim” there shall be substituted the words “the reserved portion”.
56. In subarticle (1) of article 612 of the Code the words “602,
603, 604,” shall be deleted.
57. For article 614 of the Code there shall be substituted the following>

Amendment of article 605

of the Code.

Amendment of article 608

of the Code.

Amendment to article 612

of the Code.

Substitution of article 614 of the Code.

“Property which may be disposed

of by will.

614. (1) Where the testator has no descendants or spouse, he may dispose by universal or singular title of the whole of his estate in favour of any person capable of receiving under a will.
C 1132

Substitution of heading appearing after article 614

of the Code.

Substitution of articles 615 and

616 of the Code.

(2) Where the testator has descendants or a spouse, the disposable portion of his estate shall be that which remains after deducting such share as is due to the said descendants or spouse under any of the provisions of articles 615 to 653.”.
58. For the heading “Of Legitim and Disherison” appearing after article 614 of the Code, there shall be substituted the heading “Of the Reserved Portion and Disherison”.
59. For articles 615 and 616 of the Code there shall be substituted the following>

“Reserved portion.

Reserved portion due to children.

615. (1) The reserved portion is the right on the estate of the deceased reserved by law in favour of the descendants and the surviving spouse of the deceased.
(2) The said right is a credit of the value of the reserved portion against the estate of the deceased. Interests at the rate established in article 1139 shall accrue to such credit from the date of the opening of succession if the reserved portion is claimed within two years from such date, or from the date of service of a judicial act if the claim is made after the expiration of the said period of two years.
616. (1) The reserved portion due to all children whether conceived or born in wedlock or conceived and born out of wedlock or adopted shall be one-third of the value of the estate if such children are not more than four in number or one-half of such value if they are five or more.
(2) The reserved portion is divided in equal shares among the children who participate in it.
(3) Where there is only one child, he shall receive the whole of the aforesaid third part.”.

Amendment of article 618

of the Code.

60. Article 618 of the Code shall be amended as follows>
(a) for the words “regulating the legitim” in the marginal note and in subarticle (1) thereof there shall be substituted the words “regulating the reserved portion”<
(b) in subarticle (2) thereof, for the words “the legitim” there shall be substituted the words “the reserved portion”< and
(d) for subarticle (3) thereof, there shall be substituted the following>
“(3) A child or other descendant who has been instituted heir, who had he not been so instituted would have been entitled to share the reserved portion, shall also be entitled to share therein notwithstanding that he was so instituted.”.
61. Article 619 of the Code shall be deleted.
62. Article 620 of the Code shall be amended as follows>
(a) for the marginal note thereto there shall be substituted the marginal note “Reserved portion to be free from burdens or conditions.”<
(b) for subarticle (1) thereof there shall be substituted the following>
“(1) The reserved portion is due in full ownership, and it shall not be lawful for the testator to encumber it with any burden or condition.”<
(c) in subarticle (2) thereof, for the words “The legitim is computed” there shall be substituted the words “The reserved portion is computed”<
(d) in subarticle (4) thereof, for the words “the legitim is due” there shall be substituted the words “the reserved portion is due”< and
(e) immediately after subarticle (4) thereof there shall be added the following new subarticle>
“(5) The person claiming the reserved portion shall impute to his share any property bequeathed to him by will and cannot renounce any testamentary disposition in his favour and claim the reserved portion, unless such testamentary disposition is made in usufruct or consists in the right of use or habitation, or consists of a life annuity or an annuity for a limited time.”.
C 1133

Repeal of article 619

of the Code.

Amendment of article 620

of the Code.

C 1134

Amendment of article 621 of the Code.

Amendment of article 622 of the Code.

Amendment of article 623 of the Code.

Repeal of article 624

of the Code.

Amendment of article 626

of the Code.

Amendment of article 628

of the Code.

Amendment of article 629

of the Code.

63. Article 621 of the Code shall be amended as follows>
(a) in subarticle (1) thereof, for the words “entitled to the legitim” there shall be substituted the words “entitled to the reserved portion”, and for the words “by way of legitim” there shall be substituted the words “by way of reserved portion”< and
(b) in subarticle (2) thereof, for the words “to legitim” there shall be substituted the words “to reserved portion”, and for the words “the legitim” there shall be substituted the words “the reserved portion”.
64. For the words “legitima portio” in article 622 of the Code, there shall be substituted the words “reserved portion”.
65. For paragraphs (f) and (g) of article 623 of the Code, there shall be substituted the following>
“(f) if the descendant is a 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 articles
27 to 29, declared free from the obligation of supplying maintenance to such descendant.”.
66. Article 624 of the Code is hereby repealed.
67. Article 626 of the Code shall be amended as follows>
(a) in subarticle (1) thereof, for the words “the legitim” there shall be substituted the words “the reserved portion”< and
(b) in subarticle (2) thereof, for the words “over the legitim”
there shall be substituted the words “over the reserved portion”.
68. In article 628 of the Code, for the words “by his legitim” there shall be substituted the words “by his reserved portion”, and for the words “of the legitim” there shall be substituted the words “of the reserved portion”.
69. In article 629 of the Code and in the marginal note thereto, for the word “legitim” there shall be substituted the words “reserved portion”.
70. For article 630 of the Code there shall be substituted the following>
C 1135

Substitution of article 630 of the Code.

“Disherison on

630. Where the person entitled to the reserved portion

the ground of is interdicted on the ground of prodigality, or is so burdened

prodigality.

with debts that the reserved portion, 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 reserved portion to the children or descendants of such person.”.
71. The words “and of Illegitimate Children” appearing in the heading after article 630 of the Code shall be deleted.
72. For articles 631 to 633 of the Code there shall be substituted the following>

Amendment of heading appearing after article

630 of the Code.

Substitution of articles 631 to

633 of the Code.

“Right of surviving spouse, if

631. Where a deceased spouse is survived by children or other descendants, the surviving spouse shall be entitled to

there is issue. one-fourth of the value of the estate in full ownership.

Right of surviving spouse if there is no issue.

632. On failure of children or descendants as stated in article 631, the surviving spouse shall be entitled to one-third of the value of the estate in full ownership.”.
73. Article 633A of the Code shall be amended as follows> (a) the provision shall be renumbered as article 633<
(b) for subarticles (3) and (4) thereof there shall be substituted the following>
“(3) For the purposes of articles 631 and 632, the tenement subject to the right of habitation under this article shall be excluded from the estate of the deceased over which the surviving spouse has a reserved portion.
(4) The provisions of article 395 shall not apply to the right of habitation granted under this article.”< and
(c) in subarticle (5) thereof, for the words “legitim or any portion of the estate of the deceased spouse reserved to any other person” there shall be substituted the words “the reserved portion due to any other person”.

Amendment of article 633A of the Code.

C 1136

Substitution of articles

634 to 646.

74. For articles 634 to 646 of the Code there shall be substituted the following>

“Partition between heirs

634. Where the matrimonial home belongs in part to

and surviving the surviving spouse, in any partition between the heirs of the

spouse.

Use of contents of

matrimonial home.

Definition

of furniture.

Limitations of

right of use.

Cases where surviving spouse cannot claim rights.

deceased and the surviving spouse, the surviving spouse, or the said heirs, may demand that the property subject to the right of habitation be assigned to the surviving spouse upon a valuation which is to take account of such right of habitation over the property.
635. The surviving spouse shall also have the right of use over any of the furniture in the matrimonial home belonging to the deceased spouse.
636. The provisions of article 318 shall apply in relation to the right of use referred to in article 635.
637. The provisions of subarticles (3), (6), (7) and (8) of article 633 shall mutatis mutandis apply to the right of use granted by article 635.
638. The provisions of articles 631, 632, 633 and 635 shall not apply in any of the following cases>
(a) if, at the time of the death of one of the spouses, the spouses were separated by a judgement of the competent civil court, and the surviving spouse had, in terms of articles 48, 51 and 52 of this Code, forfeited the rights referred to in those articles<
(b) where the predeceased spouse has, by his will, on any of the grounds mentioned in paragraphs (a), (b), (c), (d) and (e) of article 623, or on the grounds of adultery, expressly deprived the surviving spouse of the rights referred to in articles 631 to 633 and 635 and such ground, or where more grounds are stated, any of such grounds is proved<
(c) if, in regard to the surviving spouse, there exists any of the grounds on which such spouse would under article 605 be, as unworthy, incapable of receiving by will.

Application of articles

633 and 635 in cases of personal separation.

639. The rights referred to in article 633 and article
635 shall also apply in cases where the spouses were personally separated and the surviving spouse was in terms of article 55A entitled to reside in the matrimonial home.”.
C 1137
75. Article 648 of the Code shall be amended as follows>
(a) for paragraph (b) thereof there shall be substituted the following>
“(b) any property which has been disposed of by way of donation shall be then fictitiously added, such property being reckoned at its value at the time of the donation.”< and
(b) in paragraph (c) thereof for the words from “such persons” to the words “articles 615 to 646” there shall be substituted the words the surviving spouse in accordance with articles 615 to
639.”.
76. Article 649 of the Code shall be repealed.
77. In subarticle (1) of article 656 of the Code, for the words “written out” there shall be substituted the words “printed, type-written or written in ink”.
78. Article 661 of the Code shall be amended as follows>
(a) in subarticle (1) thereof for the words “five, nor exceeding fifty” there shall be substituted the words “one hundred, nor exceeding one thousand”< and
(b) subarticle (2) thereof shall be deleted and subarticle (3)
thereof shall be renumbered as subarticle (2) thereof.
79. For the words “527” in article 662 of the Code, there shall be substituted the words “529”.
80. The word “male” in subarticle (3) of article 676 of the Code shall be deleted.
81. Article 726 of the Code shall be amended as follows>
(a) the present provision shall be renumbered as subarticle
(1) thereof< and

Amendment of article 648

of the Code.

Repeal of article 649

of the Code.

Amendment of article 656

of the Code.

Amendment of article 661

of the Code.

Amendment of article 662

of the Code.

Amendment of article 676

of the Code.

Amendment of article 726

of the Code.

C 1138

Substitution of articles

747 to 750 of the Code.

(b) immediately after subarticle (1) thereof as renumbered, there shall be added the following subarticles>
“(2) In the case of immovable property the legatee may demand the grant of such possession be made by means of a public deed.
(3) Unless the testator shall have otherwise provided the expenses relative to the deed shall be borne by the legatee.”.
82. For articles 747 to 750 of the Code, there shall be substituted the following>

“Testator can make provision for the

existence or birth

of children etc.

Where children or

descendants are passed over.

747. It shall be lawful for a testator to make provision in his will for the existence or subsequent birth of children or descendants, and such provision may, without prejudice to any right to a share of the reserved portion, distinguish between such children or descendants in the same manner as he could lawfully distinguish between children or descendants of whose existence he is aware or who are already born.
748. Where provision is not made in accordance with article 747 and the testator makes disposition by universal or singular title and passes over any children or descendants, whether or not the testator was aware of their existence, and whether or not such children or descendants were born at the time of the making of the dispositions, such dispositions shall none the less be valid saving the right of the children or descendants so passed over to their share of the reserved portion to which they may be entitled under this Code.”.

Amendment to article 752

of the Code.

83. Article 752 of the Code shall be amended as follows>
(a) in subarticle (1) thereof for the words “issue, legitimate, adopted or legitimated by subsequent marriage, before attaining the age of eighteen years” there shall be substituted the words “issue, before attaining the age of eighteen years”<
(b) in subarticle (2) thereof for the words “issue, legitimate, adopted or legitimated by a subsequent marriage” there shall be substituted the word “issue”< and
(c) in subarticle (3) thereof for the words “the legitim” there shall be substituted the words “a share of the reserved portion”.
84. Immediately after subarticle (2) of article 758 of the Code, there shall be added the following subarticles>
“(3) It shall also be lawful for a spouse to make in favour of the surviving spouse a bequest by universal or by singular title, substituting for him or her another beneficiary in the residue still existing at the time of the demise of the surviving spouse. In such case the surviving spouse shall only be restrained from disposing of any thing contained in the disposition, by will or by title of donation.
(4) For the purpose of this article “residue” means and includes only>-
(a) immovable property, whether immovable by its nature or by reason of the object to which it refers< and
(b) all certain and determinate movable property which can be identified, excluding liquid cash and things identified only by their species.
(5) An action contesting any disposal made by the surviving spouse in contravention of subarticle (3) may be instituted during the lifetime of the surviving spouse, and shall be barred by the lapse of five years from the opening of succession of the surviving spouse.
(6) A disposal made by the surviving spouse in contravention of subarticle (3) shall in the case of immovables be null. In the case of movable property nullity shall ensue only if the beneficiary was in bad faith. In any other case action shall only lie for damages against the surviving spouse or his or her estate.”
85. In article 789 of the Code the words “the illegitimate children”
shall be deleted.
86. Article 800 of the Code shall be repealed.
87. For the heading “§I. Of Regular Successions”, and the subheading “OF SUCCESSION BY LEGITIMATE DESCENDANTS” appearing after article 807 of the Code, and for articles 808 to 830 of the Code and the headings and sub-headings appearing after articles
809, 813, 816, 824 and 829, there shall be substituted the following>
C 1139

Amendment of article 758

of the Code.

Amendment of article 789

Of the Code.

Repeal of

article 800 of the

Code.

Substitution of articles

808 to 830 of the Code.

C 1140

Where deceased

is survived by descendants and spouse.

Where deceased

is survived by descendants but not by spouse.

Where the deceased

is not survived by

descendants but is survived

by spouse.

Succession by children and descendants.

When deceased leaves no descendants nor a spouse.

ҤI. Of Succession by Descendants and Surviving
Spouse”.
808. (1) Where the deceased has left children or their descendants and a spouse, the succession devolves as to one moiety upon the children and other descendants and as to the other moiety upon the spouse.
(2) The provisions of subarticle (1) shall be without prejudice to the right of the surviving spouse under articles
633, 634 and 635.
809. Where the deceased has left children or other descendants but no spouse, the succession devolves upon the children and other descendants.
810. Where the deceased has left no children or other descendants but is survived by a spouse the succession devolves on the spouse.
811. (1) Saving the provisions of article , children or other descendants succeed to their father and mother or other ascendants without distinction of sex, and whether they are born or conceived in marriage or otherwise and whether they are of the same or of different marriages.
(2) They succeed per capita when they are all in the first degree< they succeed per stirpes when all, or some of them, take by representation.
§II. OF SUCCESSION BY ASCENDANTS AND COLLATERALS
812. Where the deceased has left no children or other descendants, nor a spouse, the succession shall devolve>
(a) if there be an ascendant or ascendants and no direct collaterals> to the nearest ascendant or ascendants<

Direct collaterals.

Succession by other collaterals.

Where persons conceived and born out of wedlock succeed with certain other persons.

Rights of succession competent to the Government of Malta.

(b) if there be an ascendant or ascendants and direct collaterals> one moiety to the nearest ascendant or ascendants and the other moiety to the direct collaterals<
(c) if there be no ascendant or ascendants but there be direct collaterals> to the direct collaterals< and
(d) if there be neither ascendant or ascendants nor direct collaterals> to the nearest collateral in whatever line such collateral may be.
813. (1) For the purpose of article 812 direct collaterals mean brothers and sisters, whether of the half or full blood or adopted and the descendants of predeceased brothers or sisters, of the half or full blood or adopted.
(2) The brothers and sisters shall succeed per capita and their descendants per stirpes in terms of articles
804 and 805.
814. Succession between collaterals shall not extend beyond the twelfth degree.
815. Where a person conceived and born out of wedlock succeeds ab intestato with adoptive children of the deceased or other children of the deceased who are not so conceived or born or the descendants of such children, or with the surviving spouse of the deceased the person conceived and born out of wedlock shall receive only three quarters of the share to which he would have been entitled if all the heirs of the deceased, including such person, had been conceived or born in wedlock, and the remaining quarter of the share to which he would have been so entitled shall devolve on the other heirs of the deceased to the exclusion of any of such heirs who is conceived and born out of wedlock as if it were a separate estate.
§III. Of the Rights of the Government
816. Where the deceased is not survived by any of the persons entitled to succeed under the rules laid down in the foregoing articles, the inheritance shall devolve upon the Government of Malta.”.
C 1141
C 1142

Substitution of articles

832 to 835 of the Code.

88. For articles 832 to 835 of the Code, there shall be substituted the following article>

“Where people die in a common calamity.

832. Where several persons die in a common calamity and it is impossible to determine who survived the other, they shall, where any one of them is called to the succession of the other, be presumed to have died at the same time.”.

Substitution of articles 839

to 844 of the Code.

89. For articles 839 to 844 of the Code there shall be substituted the following>

“Share due to

person conceived and

born out of wedlock may be paid in kind.

839. Where under testate or intestate succession a person conceived and born out of wedlock succeeds with adoptive children of the deceased or other children of the deceased who are not so conceived and born or descendants of such children, or with the surviving wife of the deceased, the other heirs of the deceased shall be entitled to pay the share due to the person conceived and born out of wedlock, either in cash or in movable or immovable property of the estate, if the latter does not object< and in case of opposition by the latter, the Court of voluntary jurisdiction shall, following an application to that effect by any of the other heirs of the deceased, decide whether to allow such payment or assignment, after taking into account personal considerations and those relating to property.”.

Amendment of article 845

of the Code.

Amendment to article 852

of the Code.

90. In subarticle (1) of article 845 of the Code, for the words “or the legitim, or the portion of property granted to illegitimate children or to the spouse” there shall be substituted the words “or the reserved portion”.
91. Article 852 of the Code shall be amended as follows>
(a) the present provision shall be renumbered as subarticle
(1) thereof< and
(b) immediately after subarticle (1) thereof as renumbered there shall be added the following new subarticle>
“(2) The provisions of subarticle (1) of this article shall also apply in the case of judicial proceedings in respect of possessory actions, in which case the person entitled to succeed shall be considered as curator de jure of the inheritance in terms of subarticle (2) of article 886.
(3) Subarticle (2) of this article shall only apply if the person entitled to succeed states in the action that he is acting in his capacity of curator de jure.”.
92. For the words “the legitim or other portion” in subarticle (2) of article 858 of the Code there shall be substituted the words “the reserved portion”.
93. For the words “the legitim or other portion” in article 861 of the Code there shall be substituted the words “the reserved portion”.
94. In article 894 of the Code, for the words “legitim or any other portion of the property would be due,” there shall be substituted the words “reserved portion would be due”.
95. Immediately after article 906 of the Code there shall be added the following new article 906A>
C 1143

Amendment of article 858

of the Code.

Amendment of article 861

of the Code.

Amendment of article 894

of the Code.

Addition of new article 906A

to the Code.

“Partition to be made between persons originally called to

succession.

906A (1) Where a partition of an inheritance is demanded the partition shall be made by dividing the property comprised in the inheritance by allotting to each person entitled to succeed in his own name at the time of the opening of the succession such amount of property as corresponds to his share.
(2) Where more than one person is entitled to a share by right of representation or by substitution they shall be allotted jointly the share that would have been due to the person whom they represent or substitute.
(3) Before the property is divided as aforesaid any unpaid debts due by the inheritance and any unpaid taxes due on the transmission causa mortis to the persons entitled to succeed at the time of the opening of the succession shall first be paid and where the partition is made by a court or other tribunal such court or tribunal may order the sale of any property comprised in that inheritance to satisfy such debt, reducing the amount so paid from the share of the person who was bound to make such payment.
(4) Where any person entitled to succeed in his own name at the time of the opening of his succession, hereinafter in this article referred to as the original heir, dies, the court shall appoint a curator to represent such person in the partition and the share of the original heir shall be allotted to the curator in representation of the original heir>
C 1144

Undivided property included in an inheritance.

Special provisions

in particular cases.

Provided that the heirs or successors or any other person having an interest in the estate of the original heir may intervene in the proceedings.
(5) An inheritance may be partitioned even if it includes an undivided part of another inheritance or of any other property.
(6) Where an action for the partition of an inheritance has been pending for more than five years and the parties to the suit are more than two, each party to the suit may demand that the court shall proceed to assign to him property belonging to the estate as is equal in value to his portion of the estate, or if this is not practicable to order the sale of any property belonging to the estate and assign from the proceeds an amount of money equal to such value, and the court shall proceed to assign such property or money notwithstanding that all the other persons having an interest are not parties to the suit or that any tax due on the transmission of their share has not been paid>
Provided that before proceeding as above the Court shall order the registrar to publish at the expense of the person making the demand in one daily newspaper and in the Gazette a notice stating that a demand for such assignment has been made in the suit, and indicating that any persons having an interest may apply to intervene in the suit and shall not so proceed before the lapse of at least fifteen days from the publication on the daily newspaper or the gazette whichever is the later.”.

Amendment of article 910

of the Code.

Amendment of article 913

of the Code.

96. Article 910 of the Code shall be amended as follows> (a) subarticles (2) and (3) thereof shall be deleted< and
(b) subarticle (1) thereof shall be renumbered as the whole article, and the words “or bring into the mass” shall be deleted.
97. In subarticle (1) of article 913 of the Code for the words “shall bring into the mass, in the interest only of the other children or descendants, being their co-heirs, everything” there shall be substituted the words “shall impute, in the interests only of the other children or descendants, being co-heirs, the value of everything”.
98. In article 916 of the Code for the words “the legitim or other portion of property” there shall be substituted the words “the reserved portion”, and the words “and articles 634 and 643” shall be deleted.
99. In articles 917 and 919 of the Code, for the words “the things” wherever they appear, there shall be substituted the words “the value of the things”.
100. Article 927 of the Code shall be deleted.
101. For article 931 of the Code there shall be substituted the following>
C 1145

Amendment of article 916

of the Code.

Amendment of articles 917

and 919 of the Code.

Repeal of article 927

of the Code.

Substitution of article 931 of the Code.

“How collation is made.

931. (1) Subject to the provisions of the following subarticles collation is made by imputing to the share of the donee the value of the thing at the time of the opening of succession.
(2) Where the donated thing consists of movables consumable by use or articles of clothing or articles intended for the domestic use of the donee, no collation shall be due.
(3) Where the thing has been alienated by onerous title by the donee, the value to be collated shall be the consideration received by the donee for the thing alienated or the value of the thing at the time of alienation whichever value is higher.
(4) Where the thing has perished by a fortuitous event, without any fault of the donee and without the donee obtaining any compensation for the loss of the thing, no collation shall be made.”.
102. Article 933 and articles 935 to 937 of the Code shall be repealed.
103. Article 938 of the Code for the words “legitim, etc”, in the marginal note thereto, and for the words “legitim or other portion of property” and the words “legitim or portion” in subarticle (1) therof< there shall be substituted in each case the words “reserved portion”.

Repeal of articles

933, 935 to 937 of the Code.

Amendment of article

938 of the Code.

C 1146

Amendment of article

957 of the Code.

Amendment of article 1743

of the Code.

Repeal of article 1748 of the Code.

Amendment of article 1750

of the Code.

Substitution of article 1751

of the Code.

104. In article 957 of the Code for the word “legitim“ there shall be substituted the words “reserved portion”.
105. In article 1743 of the Code for the words “Saving the provisions of the Mortmain Act, all persons”, there shall be substituted the words “All persons”, and the words “Cap. 201.” in the marginal note shall be deleted.
106. Article 1748 of the Code shall be repealed.
107. In article 1750 of the Code, for the words “in the foregoing articles, is null, in whole or in part, according to the extent of the incapacity” there shall be substituted the words “in article 1749 is null”.
108. For article 1751 of the Code there shall be substituted the following>

“Intermediaries.

1751. The father, the mother, the children, the
descendants and the spouse of the person who is incapable of receiving by donation, shall, unless the contrary is proved, be considered to be intermediaries.”.

Repeal of article 1805 of the Code.

Amendment to article 1810

of the Code.

Amendment of article 1812

of the Code.

Substitutes Form Q in Part II of the Schedule to the Code.

Addition of Form R to Part II of the Schedule the Code.

Transitory provision.

109. Article 1805 of the Code shall be repealed.
110. In subarticle (2) of article 1810 the words “, subject to the provisions of article 1748” shall be deleted.
111. In article 1812, the words “, saving, however, the provisions of article 639” shall be deleted.
112. Form Q in Part II of the Schedule to the Code shall be substituted by the Form Q appearing in the First Schedule to this Act.
113. Immediately after Form Q in Part II of the Schedule to the Code there shall be added Form R appearing in the Second Schedule to this Act.
114. (1) The provisions of this Act amending the provisions of the Code in relation to successions and collation shall apply only in relation to successions opening after the coming into force of the relevant article of this Act, but the provisions of this Act amending the Code in relation to property held in common and to its partition shall apply with
immediate effect also to property so held in common that has devolved on the co-owners through succession.
(2) The provisions of this Act amending the provisions of the Code in relation to forms of wills other than the provisions of article
77 of this Act shall apply only in relation to wills drawn up after the coming into force of the relevant article of this Act.
(3) The provisions of this Act relative to donations shall apply only in relation to donations made after the coming into force of this Act.
(4) (a) In the case of spouses who married prior to the coming into force of article 4 of the Code as amended by this Act, the said article 4 shall apply in the sense that the wife may ,within six months after the coming into force of article 2 of this Act, opt to reassume the surname of her predeceased husband in lieu of her current surname by delivering or causing to be delivered to the Public Registry Office the Form Q contained in Part II of the Schedule to the Code. On receipt of such Form the Director of the Pubic Registry shall register the same in a book referred to in subarticle 4(5) of the Code and for which he shall keep an index under the surname of the wife‘s predeceased husband and that of her current husband, and her maiden surname.
(b) The provisions of the Code as amended by this Act with regard to the surname of children born in wedlock or outside wedlock will apply only with regard to children born after the coming into force of this Act and the provisions of the Code as in force before the coming into force of this Act shall continue to apply with regard to children born before the coming into force of this Act.
C 1147

(Article 112)

(Article 4 (5))

FIRST SCHEDULE

FORM Q DECLARATION ON USE OF NAME

Notes: * Where marriage or death is not registered in the Public Registry evidence to the satisfaction of the Director must be produced.

** To be filled only if wife opts to use surname of deceased husband.

*** delete as necessary

I the undersigned opt to use my maiden surname/the surname of my deceased husband ***

Signature of wife

Filed on

By

(Article 113)

SECOND SCHEDULE

(Art 4 (6))

FORM R

DECLARATION ON THE RETENTION OF USE OF FORMER HUSBAND’S NAME

I the undersigned declare in the presence of my husband and of the hereunder-mentioned witnesses that I understand to retain the surname of my former husband.

Details of Present Marriage

Details of Previous Marriage

C 1152

Objects and Reasons

The main object of the Bill is to eliminate certain discriminatory provisions in respect of children conceived and born out of wedlock, in particular in the law of succession. The Bill also improves the position of the spouse in relation to children both in intestate succession and in the reserved portion. The Bill also makes provisions providing a procedure for a change in the indication of the sex of a person on certain documents, after the person has, for physiological and psychological reasons to be established by experts, shown that he or she belongs to a sex other than that shown in the Act of Birth. The Bill also deals with partition of common property introducing rules which should in practice solve a number of problems dealing with co-ownership.