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Maltese Laws |
AN ACT to amend the Notarial Profession and Notarial Archives Act, Cap. 55.
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:-
(2) This Act shall come into force on such date as the Minister responsible for notarial affairs may by notice in the Gazette establish, and different dates may be so established for different provisions and different purposes thereof.
(a) immediately after Title IV of Part II there shall be added the following:
"Title V Of Notarial Trust Accounts 24A"
(b) for the words "Of Copies and Extracts" in Title III of Part III there shall be substituted the word "Of Copies,
Extracts and Declarations";
Short title and commencement.
Amendment of Arrangement of Act of the principal Act.
C 534
(c) immediately after Title V of Part III there shall be added the following:
"Part IIIA Of Notarial Trust Deeds and
Private Foundations 84A-84B Part III Of the Examination of Title 84C"; and
(d) immediately after Part IV there shall be added the following:
Amendment of article 2 of the principal Act.
"Part IVA Of the Review of Notarial
Acts 94A-94B"
be substituted by the following:
Cap. 79.
"(i) to act as mediators;
(j) ex officio to act as Commissioners for Oaths for the purposes of the Commissioners for Oaths Ordinance;
(k) generally, to exercise such other powers as are assigned to them by law.".
(b) immediately after subarticle (2) thereof, there shall added the following new subarticles:
"(3) Notaries are empowered to draft private writings containing agreements that purport to create legal rights and obligations
between third parties.
Amendment of article 3 of the principal Act.
(4) Notaries are empowered to examine title to immovable property in terms of article 84C.".
"(1) No person may practise as a notary if:
(a) he holds the warrant of advocate or legal procurator;
(b) he is a bank manager;
(c) he is an estate agent or similar broker
(sensar);
C 535
(d) he is a partner in a commercial partnership or a director or shareholder in a limited liability company -
(i) whose principal business is the acquisition and transfer of immovable property, or its construction, reconstruction or development,
or
(ii) whose principal service is estate agency;
(e) he is a director in a public company whose principal business or service is any of those mentioned in paragraph (d);
(f) he is a trader whose principal acts of trade are any of those mentioned in paragraph (d):
Provided that the President of Malta may authorize such person to practise as a notary on his surrendering the said warrant or on
his ceasing to be such manager, broker, estate agent, partner, director, shareholder or trader.".
"4. (1) The Chief Notary to Government shall in January of each year post on one of the Government websites the lists
mentioned hereunder which he shall update from time to time as the need arises:
(a) the names of the notaries practising their profession in Malta and Gozo;
(b) the names of notaries who are the keepers of the acts of deceased notaries or of notaries who have ceased to practise
their profession, together with the names of the notaries whose acts are so kept.
(2) The Minister responsible for notarial affairs may make regulations prescribing the manner in which such lists and their
updates are to be drawn up.".
(a) subarticle (2) thereof shall be renumbered subarticle
Substitution of article 4 of the principal Act.
Amendment of article 5 of the principal Act.
(3);
(b) immediately after subarticle (1) thereof, there shall
C 536
be added the following new subarticle:
Cap. 249.
"(2) For the purposes of subarticle (1), "Malta" shall have the meaning assigned to it in the Interpretation Act and shall also mean the premises housing Maltese high commissions, embassies and consulates, and Maltese registered ships and aircraft.";
(c) immediately after subarticle (3) thereof, as renumbered, there shall be added the following new subarticles:
"(4) Any person who, not being one whose name has appeared in the Gazette in terms of subarticle (1), assumes the designation
of Notary or in any manner purports to be entitled to practise the profession of a Notary Public in Malta, shall be guilty
of an offence under this Act and shall, on conviction, be liable to a fine (multa) of not less than one thousand euro (€1,000) but notmore than five thousand euro (€5,000), and in respect of a second
or subsequent conviction to imprisonment for a term not exceeding three months or to both such fine and imprisonment.
Substitution of article 6 of the principal Act.
(5) The provisions of subarticle (4) shall also apply to a person who has ceased to practise his profession in terms of article 14(1).".
"6. (1) No person shall be appointed as a notary, unless -
(a) he is a citizen of Malta or of a Member State of the European Union or of a State of the European Economic Area: provided
that a State of the European Economic Area means Iceland, the Principality of Liechtenstein and the Kingdom of Norway;
(b) he is of good conduct and good character;
(c) he has obtained the Doctorate of Laws from the University of Malta after having followed a course which includes appropriate
study-units in notarial studies as prescribed by the relevant statutes, regulations and bye- laws of the University of Malta;
(d) he has been a trainee at the office of a notary
C 537
for a continuous period of not less than two years prior to the date when the qualifying examination is held in terms of article 7,
provided that if he has been a trainee with one notary and has continued his traineeship with another notary or notaries,
the aggregate period shall be taken into account:
Provided further that the notary or notaries with whom the period of traineeship is conducted shall have practised their profession
in Malta for at least ten years;
(e) he is fully conversant with written and spoken
Maltese and English;
(f) he has passed the qualifying examination held in terms of article 7.
(2) The Minister shall, after consulting the Notarial Council and the Board mentioned in article 7, make regulations determining
the manner in which the requisites laid down in subarticle (1)(a) to (e) are proved.".
"7. (1) The Minister responsible for notarial affairs shall in November of each year appoint for a period of twelve months
a Board of Examiners composed of a retired Judge or retired Magistrate or retired advocate ordinarily presiding the Court of Revision
of Notarial Acts, the Chief Notary to Government, a practising notary proposed by the Notarial Council and two other practising
notaries:
Provided that no notary shall sit on the Board unless he has practised his profession for at least ten years.
(2) The Board shall hold the qualifying examination mentioned in article 6(1)(f) after ascertaining that the requisites of paragraphs
(a) to (e) thereof have been satisfied, and it shall also carry out any other function assigned to it by this Act and any other law.
(3) Subject to the provisions of this Act and any applicable regulations, the Board shall regulate its own procedure.
(4) The notary at whose office a candidate satisfied the requirements of article 6(1)(d), any associate of such notary and
Substitution of article 7 of the principal Act.
C 538
any notary who provides services from the same office shall not sit on the Board. If the candidate undertook his traineeship with
more than one notary, the provisions of this subarticle shall apply to the notaries with whom the traineeship took place, their associates
and other notaries who provide services from the same office.
(5) No person may sit on the Board if he is the spouse of or is related to any of the candidates by consanguinity or affinity in
the direct line up to any degree or in the collateral line up to the third degree inclusively, or if there is a manifest conflict
of interest.
(6) Where the retired Judge or retired Magistrate or retired advocate ordinarily presiding the Court of Revision of Notarial
Acts or the Chief Notary to Government is disqualified to sit on the Board, or if he is unable or unwilling to do so, the Minister
shall appoint, as the case may be, another retired Judge or retired Magistrate or retired advocate or one of the notaries in Government
employment.
(7) Where the Notarial Council fails to propose a notary for appointment on the Board within fifteen days of receiving a request
to do so, the Minister shall proceed to appoint a practising notary of his choice.
(8) Where a member of the Board resigns or becomes disqualified to continue sitting on the Board, the Minister shall substitute
such member in the shortest possible time, so however that his term of appointment shall be for the period as yet unexpired
for which the member who resigned or became disqualified had been appointed, and where applicable the provisions of subarticles (6)
and (7) shall apply mutatis mutandis.
Substitution of article 8 of the principal Act.
(9) Members of the Board shall be paid an honorarium to be fixed by regulations made by the Minister responsible for notarial affairs under this article.".
C 539
following:
"The qualifying examination.
8. (1) The qualifying examination shall be held in March of each year.
(2) A person who satisfies or, by the time the qualifying examination is held, will have satisfied the requisites of article
6(1)(a) to (e) may apply to sit for the examination on paying the prescribed fee.
(3) The qualifying examination shall consist of one or more written papers, and it may be held on one or more dates. The Board shall
also hold an oral examination within two months from the date of the last written examination.
(4) Candidates shall be examined on the formalities of notarial acts, fiscal laws associated with the transfer of immovable property,
the laws of registration, the law and practice regarding examination of title to immovable property, applications to a Court of Voluntary
Jurisdiction, professional ethics, and any other aspect of substantive and procedural law relative to the notarial profession,
according to a syllabus published from time to time by regulations made by the Minister responsible for notarial affairs after he
has consulted the Notarial Council and the Board.
(5) A majority of votes of the examiners is necessary for a candidate to pass the examination.
(6) The result of the qualifying examination shall be valid for a period of five years from the date of the report submitted in terms
of article 9(1).
(7) Notwithstanding the provisions of the last preceding subarticle, in case of failure a candidate shall have the right to
be admitted once to a fresh examination held on the following or any subsequent year.".
"9. (1) Where a candidate passes the qualifying
Substitution of article 9 of the principal Act.
C 540
examination, the Board of Examiners shall report this to the Minister responsible for notarial affairs who shall, subject to such
candidate complying with the provisions of article 10, submit his name to the President of Malta for appointment as notary public.
Amendment of article 10 of the principal Act.
(2) Where a successful candidate does not comply with the provisions of article 10 he may, when he so complies and provided the time referred to in article 8(6) has not elapsed, apply to the Minister requesting him to submit his name to the President for appointment as notary public.".
(a) the present provision shall be renumbered as subarticle (1) thereof;
(b) immediately after paragraph (c) of subarticle (1) thereof, as renumbered, there shall be added the following new paragraphs:
"(d) submit to the Notarial Council proof that he has adequate insurance cover for professional liability;
(e) submit to the Notarial Council the personal details and other information required by regulations made by the Minister with
the concurrence of the Notarial Council."; and
(c) immediately after subarticle (1) thereof, as renumbered, there shall be added the following new subarticle:
Addition of new articles to the principal Act.
"(2) A notary shall not enter upon the exercise of his functions before notice of his appointment has been published in the Gazette in terms of article 5(1).".
"Insurance. 10A. (1) It shall be the responsibility of every notary, except those referred to in article
22, to be adequately insured against all risks of professional liability during the time he is exercising his profession. The insurance
company providing such insurance shall each year issue a certificate to the notary attesting that he is covered in terms of this
subarticle.
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Change in name/ surname.
(2) A notary may apply to the Court of Revision of Notarial Acts to exempt him from the provisions of subarticle (1) for any particular
calendar year.
(3) The Minister may, after consulting the Notarial Council, make regulations -
(a) to specify the criteria which insurance companies shall take into account when providing the cover referred to in subarticle
(1), and
(b) to indicate the cases where and the conditions under which the Court of Revision may exempt notaries from the provisions
of subarticle (1).
10B. (1) A notary whose name/ surname has changed either by court order, which has become final, or through marriage
shall, not later than two months from the date of such court order or the celebration of the marriage, file a note in the Court of
Revision of Notarial Acts informing the court of such change and shall also write his specimen signature in the book at the Attorney
General’s office referred to in article 10(1)(b). The note shall be served on the Chief Notary to Government and on the President
of the Notarial Council.
(2) The Chief Notary to Government shall forthwith cause the note to be published in the Gazette and he shall update
the electronic list mentioned in article 4(1))(a).
(3) A notary who publishes a notarial act before the note appears on the Gazette in terms of this article shall be liable to a fine
(ammenda) of five hundred euro (€500) for each act so published.
(4) The Notarial Council shall ensure compliance with the provisions of this article and may apply to the Court of Revision to
order the notary to comply and/or to award the appropriate disciplinary punishment.".
"12. It shall not be lawful for any notary to receive any
Substitution of article 12 of the principal Act.
C 542
act -
(a) which is expressly prohibited by law or manifestly contrary to good morals or to public policy;
(b) if any of the parties thereto is the notary’s spouse or is related to the notary by consanguinity or affinity in the direct
line in any degree or in the collateral line up to the third degree inclusively;
(c) (i) which, being a will, contains any disposition in favour of the receiving notary, or any of the persons mentioned
in paragraph (b), unless such disposition is allowed by law or is contained in a secret will not written by the notary
or by any of the persons mentioned in that paragraph, and delivered to him sealed by the testator;
(ii) which, being an inter vivos act, contains any provision concerning the receiving notary or any of the persons referred to in paragraph (b), unless such provision
is required or allowed by law;
(d) if any of the parties thereto is by the competent authority restrained from entering into contracts or disposing
of his property, provided such act is affected by the terms of the inhibition, notified to the notary in accordance with article
527 of the Code of Organization and Civil Procedure;
(e) if any of the parties thereto is represented by an agent or other representative who is any of the persons referred to in paragraph
(b);
(f) if any of the parties thereto is a commercial partnership, other than a public company -
(i) having at the time a director, partner or shareholder who is the notary or any of the persons referred to in paragraph (b),
or
(ii) whose legal or judicial representation is vested in the notary or any of the said persons;
(g) if any of the parties thereto is a civil partnership, foundation, association or a legal entity other than a commercial partnership,
and it has at the time a partner, founder, associate, or a member of its governing or
C 543
administrative body or a person having its legal or judicial representation who is the notary or any of the persons referred to
in paragraph (b);
(h) which, being a notarial trust deed or a notarial act referring to a trust, the settlor, trustee or protector of the trust is
the notary or any of the persons referred to in paragraph (b);
(i) which, being a notarial trust deed with beneficiaries who are determined or determinable, any of them is or may be the notary
or any of the persons referred to in paragraph (b); or
(j) which, being a discretionary trust deed, the power of appointment or any discretion may be exercised in favour of the notary
or any of the persons referred to in paragraph (b).".
(a) for the words "Temporary suspension or incapacitation" in the marginal note thereof there shall be substituted
the words "Suspension or incapacitation";
(b) the present article shall be renumbered subarticle (1)
thereof; and
(c) immediately after subarticle (1) thereof, as renumbered, there shall be added the following new subarticle:
"(2) He may be partially incapacitated from doing so in any of the cases mentioned in articles 94A and 94B.".
(a) for the words "from such deeds," there shall be substituted the words "from such deeds, or issue the declaration
Amendment of article 14 of the principal Act.
Amendment of article 15 of the principal Act.
Amendment of article 17 of the principal Act.
Amendment of article 20 of the principal Act.
C 544
in terms of the proviso to article 68(2),";
(b) for the words "of any notary" there shall be substituted the words "or issue the said declaration";
and
Amendment of article 21 of the principal Act.
Addition of new Title and article to the principal Act.
(c) for the words "such copies or extracts" there shall be substituted the words "such copies or extracts or issue such declarations".
"TITLE V
OF NOTARIAL TRUST ACCOUNTS
Notarial Trust
Account.
24A. (1) Every notary, except those referred to in article 22, shall open an account with a local commercial bank, to be designated
a "Notarial Trust Account", in which he shall deposit all monies deposited with him in his professional capacity, and he
shall inform the Notarial Council of the opening or closing of such account in the manner and within the time prescribed:
Provided that where the notary closes such account he shall, unless he has already done so, open another one with the same or a different
local bank in such a way that he shall always have one such account open.
(2) The notary may open, operate and close other such accounts, in which case he shall inform the Notarial Council in the
manner and within the time prescribed.
(3) The notary shall keep a register in the manner prescribed wherein he shall list all the monies deposited in and withdrawn from
the accounts mentioned in subarticles (1) and (2), and he shall note therein all other information as may be prescribed.
C 545
(4) Monies deposited in such accounts shall constitute for each such account a trust fund owned by the notary for the benefit of
the persons who deposited them with him, and such fund shall be distinct and separate from his personal property.
(5) The existence of such accounts, duly registered with the Notarial Council, shall have the following legal effects, namely:
(a) the personal creditors of the
notary shall have no recourse against the
monies held in the accounts;
(b) such monies shall not form part of the notary’s personal estate upon his insolvency; and
(c) such monies shall not form part of the matrimonial property of the notary or his spouse nor part of the notary’s estate
upon his death.
(6) Where a notary fails to register the opening of such accounts with the Notarial Council, the monies deposited therein shall
not, for the purposes of subarticle (4), be deemed to be owned separately and distinctly from the notary’s personal property, nor
shall the provisions of subarticle (5) of this article apply.
(7) Upon the appointment for any reason of a notary keeper of the acts of a notary, such keeper shall ipso jure and without the need of any further procedure, be vested with the ownership of such account or accounts and all the provisions
of this article shall mutatis mutandis apply to the notary keeper:
Provided that where the cause that gave rise to the appointment of a keeper has ceased and has been published in the Gazette, the
ownership of such account or accounts shall, without the need of any further procedure, vest again in the first notary:
C 546
Substitution of article 25 of the principal Act.
Provided further that where the Chief Notary to Government is appointed keeper of the acts of a notary who was in private
practice, such account or accounts shall vest in the Government but be administered by the Chief Notary and the first proviso to
this subarticle shall also apply.
(8) The Notarial Council shall keep a record of such Notarial Trust Accounts in the manner prescribed and shall, in the circumstances
and manner prescribed, confirm the existence of such accounts to any local bank, to the heirs of the deceased notary or to any person
as may be prescribed.
(9) Notaries shall each year confirm to the Notarial Council the details of such accounts currently held by them.
(10) The Minister responsible for notarial affairs may from time to time, after consulting the Notarial Council, make regulations
generally for carrying out the provisions of this article and for such matters as are authorised by this article to be prescribed.".
"25. (1) In this Part, and in Parts IIIA and IIIB, "party” refers to the person who is a party to the negotium which is incorporated in the act and, in the case of a will, to the testator; and "appearer" means the person who appears
before the notary either as a party or as the representative or agent of a party.
(2) The notary shall not receive a notarial act except in the presence of the appearers.
(3) The presence of two witnesses shall be required only in the following cases:
(a) whenever any of the appearers so requests;
(b) whenever any of the appearers does not know how or is unable to sign his name;
(c) in the case of public wills; and
C 547
(d) in the case of acts of delivery of secret wills.
(4) It is the duty of the notary to direct the drawing up of the act from beginning to end, even when he causes it to be prepared
by a person whom he deems trustworthy.
(5) The notary alone is competent to ascertain the will of the appearers and to inquire, after reading over and explaining
the act to them, whether it is in accordance with their will.
(6) Notwithstanding the provisions of this and any other law, provided no witnesses are required in terms of subarticle (3), and
nor does the proviso to article 34(1) or any of articles
36, 37, 38 apply, where all the appearers on the act declare that
they are fully cognizant of the contents of the act and its annexes, they may by an express declaration exempt the notary
from reading over the act to them in which case the following formalities are required:
(a) at the foot of the act and before the final signatures, the notary records both declarations in his own handwriting and signs
what he has recorded,
(b) immediately following the notary’s signature, each appearer separately writes in his own handwriting "I confirm this
exemption" to which he affixes his signature, and
(c) all the appearers sign every sheet of the act in the outer margin and every annexe, unless the annexes have already been signed
in terms of article 28(1)(k).".
Substitution of article 26 of the principal Act.
"Notary must be certain of identity of appearers, attestors, witnesses and interpreters.
26. The notary must personally be certain of the identity of the appearers, attestors, witnesses and interpreters. Such
identity shall be ascertained by the production of the official identity card, passport or other similar official document and, where
such document cannot be produced by any of the appearers, on the testimony of two attestors who may also be the witnesses appearing
on the act.".
C 548
Amendment of article 27 of the principal Act.
Amendment of article 28 of the principal Act.
(a) in sub-paragraph (i) of paragraph (c) thereof:
(i) in the English text for the words "the maiden name of the mother" there shall be substituted the words "the
maiden surname of the mother";
(ii) for the words "residence and the profession or calling of each of the parties, witnesses and attestors, and, as regards
the parties and the attestors, also the place of birth" there shall be substituted the words "residence, the place and
date of birth (which may be written in figures only) of the parties";
(b) for sub-paragraph (iii) of paragraph (c) thereof there shall be substituted the following:
"(iii) where a person appears as the agent or representative of any of the parties or where witnesses, attestors or interpreters
appear thereon, the name and surname, the place and date of birth (which may be written in figures only), and place of residence
of such agent, representative, witness, attestor or interpreter;"
(c) in sub-paragraph (iv) of paragraph (c) thereof for the word "Act" there shall be substituted the word "act";
(d) for paragraph (d) thereof there shall be substituted the following:
"(d) the number (which may be written in figures only) of the official document produced for ascertaining the identity of the
appearers or a declaration that the notary has ascertained such identity by means of attestors. Where witnesses or interpreters appear
on an act, or where the identity of any of the appearers has been ascertained on the testimony of attestors, the number (which may
be written in figures only) of the official document produced by such witness, attestor or interpreter for their identification;";
(e) in paragraph (e) thereof, for the words "of any date
C 549
or" there shall be substituted the words "of any date, sum of money,";
(f) immediately after the proviso to subparagraph (ii) of paragraph (f) thereof, there shall be added the following new proviso:
"Provided further that for the purpose of this paragraph, all land shall be considered rural unless it is the whole roof and
airspace overlying urban property;";
(g) for the proviso to paragraph (g) thereof, there shall be substituted the following:
Cap. 364.
"Provided that, in any case where, in terms of the Duty on Documents and Transfers Act and the Income Tax Acts or any
other enactments substituting the same, the duty and the tax due in terms of the respective laws regarding the negotium of the notarial act are to be paid at the office of the Commissioner of Inland Revenue, it shall be lawful for the notary to
annex to the act after the publication thereof the copy given to him by the said Commissioner of the notice which the notary filed
at such office, and the copy thus annexed shall be deemed to form part of the act notwithstanding that it is not mentioned in the
act and is not signed by the appearers, the witnesses, the attestors, the interpreters, if any, and the notary;".
(h) in paragraph (h) thereof, for the word "parties" there shall be substituted the word "appearers";
(i) in paragraph (i) thereof, after the words "to any of the parties" there shall be added the words "or the appearers";
(j) in paragraph (j) thereof, for the word "published" there shall be substituted the words "published and, where
it is a country or place other than Malta, the name of such country or such place"; and
(k) in paragraph (k) thereof:
(i) in subparagraph (i) thereof, for the words "the parties" there shall be substituted the words "the
C 550
appearers", and for the words "of this subarticle" there shall be substituted the words "of this subarticle;
and, unless article 25(6) applies, the notary shall initial every sheet of the act and of every annexe thereto;";
(ii) in sub-paragraph (ii) thereof, for the words "sealed stamp" there shall be substituted the words "stamp or a
sealed stamp"; and
(iii) for sub-paragraph (iii) thereof, there shall be substituted the following:
Cap. 364.
"(iii) when the documents annexed to the act exceed five in number, disregarding for this purpose the copy of the notice filed at the office of the Commissioner of Inland Revenue subsequently to the completion of the act in terms of the Duty on Documents and Transfers Act and the Income Tax Acts or any enactments substituting the same, the notary may make a list thereof, separate from the act, and annex it to the act, making an express reference to such list in the act; in any such case the list shall be signed in the same manner as the act, and the signatures on the annexed documents shall be dispensed with,".
Addition of new article to the principal Act.
"Regulations prescribing the
documents to
be annexed.
28A. Without prejudice to the right of the notary to annex to a notarial act the documents he deems necessary or useful, and without prejudice to his obligation to do so in terms of this Act or any other law, the Minister responsible for the notarial profession may make regulations prescribing the documents which a notary shall be obliged to annex to a notarial act.".
Amendment of article 29 of the principal Act.
Amendment of article 30 of the principal Act.
(a) in subarticle (2) thereof, for the word "parties" there shall be substituted the word "appearers"; and
C 551
(b) in subarticle (3) thereof, for the words "the expression "words added" ", there shall be
substituted the words "the expression "words added", "adde" or other similar expression".
(a) subarticle (2) thereof shall be deleted; and
(b) subarticle (1) thereof shall be renumbered as the whole article 31.
(a) in subarticle (1) thereof, for the words "public act" there shall be substituted the words "inter vivos act";
(b) in subarticle (2) thereof:
(i) in paragraph (d) thereof, for the words "the registrar and two witnesses;" there shall be substituted the words
"and the registrar;"; and
(ii) paragraph (e) thereof shall be substituted by the following new paragraph:
"(e) the name, surname, the name of the father, the place of birth and death of the testator and in addition, when any of the
following details result from the secret will or its act of delivery, the name and maiden surname of the mother, the date of the
testator’s birth and the official document of identification;".
29. In article 33 of the principal Act, for the words "a public deed" there shall be substituted "an inter vivos act".
(a) for the words "party" and "parties" wherever they occur there shall be substituted the words "appearer"
and "appearers" respectively;
(b) in subarticle (1) thereof, the words from "(including the acts which notaries" to the words "and (h)"
shall be deleted; and
Amendment of article 31 of the principal Act.
Amendment of article 32 of the principal Act.
Amendment of article 33 of the principal Act.
Amendment of article 34 of the principal Act.
C 552
(c) immediately after subarticle (6) thereof, there shall be added the following new subarticle:
Amendment of article 36 of the principal Act.
Amendment of article 37 of the principal Act.
"(7) The acts a notary is empowered to receive, perform or issue in terms of article 2(2)(b), (c), (d), (e), (g), (h) and (j) shall likewise be in the Maltese or the English language as the persons signing, approving, declaring or requiring such documents desire, and in the case of the act made in terms of paragraph (f) in the Maltese or English language as the notary desires, and all the other provisions of this article shall mutatis mutandis apply.".
(a) for the word "parties", wherever it occurs, there shall be substituted the word "appearers";
(b) subarticle (3) thereof shall be renumbered as subarticle (4); and
(c) immediately after subarticle (2) thereof there shall be added the following new subarticle:
"(3) The interpreter shall sign the act as provided in article 28(1)(k) and (l).".
(a) in subarticle (1) thereof, for the words "parties" and "party", there shall be substituted the words
"appearers" and "appearer" respectively;
(b) in subarticle (2) thereof:
(i) for the word "party" there shall be substituted the word "appearer";
(ii) for the words "Civil Court, Second Hall" there shall be substituted the words "Civil Court
(Voluntary Jurisdiction Section)";
(c) in subarticle (3) thereof for the figure "36(3)" there shall be substituted the figure "36(4)"; and
(d) subarticle (5) thereof shall be substituted by the following new subarticle:
C 553
"(5) The provisions of article 36(3) and (4) shall apply to such interpreter.".
(a) in subarticle (1) thereof:
(i) for the word "parties" there shall be substituted the word "appearers";
(ii) for the words "Civil Court, Second Hall" there shall be substituted the words "Civil Court
(Voluntary Jurisdiction Section)"; and
(b) in subarticles (2) and (3) thereof for the word
"party" there shall be substituted the word "person".
Amendment of article 38 of the principal Act.
Amendment of article 39 of the principal Act.
Substitution of article 40 of the principal Act.
"Null and annulable notarial acts.
40. (1) A notarial act is null:
(a) if it has been received by a notary before his name has appeared in the Gazette in terms of article 5(1);
(b) if it has been received by a notary who has ceased to exercise his functions for any of the causes laid down in article
14, or who has been suspended or incapacitated in any of the cases referred to in article 15(1) and after such cessation, suspension
or incapacitation has been published in the Gazette;
(c) if it is undated;
(d) if it has been received in contravention of any of the provisions of article 12(a), (c)(i), (c)(ii), and (d):
Provided that if the contravention refers only to one or more parts of the act, only such part or parts shall be null:
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Provided further that the contravention of article 12(c)(i) or (ii) shall only imply the nullity of the disposition or provision
referred to in those subparagraphs;
(e) if the requirements of articles
25(1), (2), (3), (4) and (5), 27, 28(1)(k)
and 34 have not been complied with: Provided that where no witnesses
are required in terms of article 25(3), nor
does the proviso to article 34(1) or any of articles 36, 37, 38 apply, the temporary absence of an appearer during the publication
of the act shall not invalidate the act unless, immediately upon his return, he requests the notary to read again what such appearer
had not been present for, and the notary refused:
Provided further that the omission of signatures in the annexe or list, as required by article 28(1)(k), shall not render the act
null but such unsigned annexe or list shall not be deemed to form part of the act except in so far as the truthfulness of
its contents results from the act itself or from the list mentioned in the said paragraph (k):
Provided further that the omission of the declaration referred to in article
28(1)(k)(ii) shall not render the act null. (2) A notarial act is annulable:
(a) if it has been received in contravention of any of the provisions of article 12(b), (e), (f), (g), (h), (i) and (j);
(b) if the requirements of articles
36, 37, and 38 have not been complied with;
(c) if the requirements of article
25(6) have not been complied with;
(d) if the notary has not read the act to the appearers, saving the provisions of article 25(6);
(e) if the notary has not explained the act to the appearers;
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(f) if the notary has not read and explained the act to the appearers in the presence of the witnesses, when the presence of
witnesses is required by article 25(3).
(3) No action shall lie for the declaration of nullity of an act having any of the defects referred to in subarticle (1)(c),
(d) and (e) except on the demand of one of the parties thereto:
Provided that where the defect is that mentioned in subarticle (1)(c), the date of the act shall be deemed to be the one referred
to in the proviso to subarticle (12).
(4) No action shall lie for the annulment of an act having any of the defects referred to in subarticle (2) except on the demand
of a party to the act who proves to have suffered material damage as a consequence of such defect or defects.
(5) Subject to the applicable provisions of this article, no action mentioned in subarticles (3) and (4) shall lie except within
the peremptory terms of ten and five years respectively, such terms to start running from the date of publication of the act
or, where the act is enrolled in the Public Registry or an application has been filed in the Land Registry for the first registration
of, or the dealing with the immovable which is the subject-matter of, the act, from the date of its enrolment in the Public Registry
or the application in the Land Registry whichever occurs first.
(6) Without prejudice to the rights already acquired by third parties, an act which is null in terms of subarticle (1) may
be rendered valid by a subsequent act and with effect thereof, hereinafter referred to as an "act of validation".
(7) An act which is annulable on account of any of the defects listed in subarticle (2) may, by a subsequent
act, hereinafter referred to as an "act of convalidation", have its validity ab initio confirmed.
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Cap. 364.
(8) Where an act of validation is published in terms of subarticle (6), the notary shall annex to such act -
(a) the original defective act with the available documents annexed thereto, if the original defective act is not preserved
in the records of the notary who published it, or
(b) an authenticated copy of the defective act including a copy of the available annexed documents if it is so preserved;
and, notwithstanding any other law, any duty already paid for the purposes of the Duty on Documents and Transfers Act and any tax
already paid for the purposes of the Income Tax Acts regarding the defective act, shall be deemed to have been paid on account or
in full settlement of any such duty or tax that may be due on the act of validation.
(9) Where any party to a defective act or his successors in title is unable or unwilling to appear on an act to validate or convalidate
as the case may be a defective act, and such party has not yet brought or is not entitled to bring an action in terms of subarticles
(3) or (4), any other party to the defective act or his successors in title shall have the right to apply to the Court of Revision
of Notarial Acts requesting it to order that an act be published validating or convalidating, as the case may be, the defective act
under such terms and conditions as the Court may consider appropriate, and that curators be appointed to appear in the name of those
parties or their successors in title who fail to appear on such act of validation or convalidation.
(10) A copy of the application shall be served on the other parties to the act or their successors in title or their agents.
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(11) Where an application has been filed in terms of subarticle (9) for the validation or convalidation of an act, the right any
other party to the act may have hitherto had to bring an action in terms of subarticles (3) or (4) shall immediately lapse.
(12) Upon being satisfied that the signatures on the defective act are authentic and that the appearers on the act had given
their consent thereto, the Court shall order the publication of an act of validation or convalidation, as the case may be, of the
defective act:
Provided that where the act is defective in terms of subarticle (1)(c), but it has been enrolled in the Public Registry
or an application has been filed in the Land Registry for the first registration of, or the dealing with the immovable which is
the subject-matter of, the act, the date of the act shall be deemed to be that contained in such note of enrolment or that referred
to in such an application.
(13) The notary publishing the act of validation or convalidation ordered in terms of subarticle (12) shall annex to the act
the registrar’s declaration that the decision of the Court of Revision has become res judicata.
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(14) Saving any other provision of this article and without prejudice to the rights already acquired by third parties, the Minister
responsible for notarial affairs may by regulations provide that a notarial act having one or more of the defects mentioned in any
of the paragraphs of subarticle (1) and which has been enrolled in the Public Registry or in relation to which an application has
been filed in the Land Registry for the first registration of, or the dealing with the immovable the subject-matter of, the act,
and which had been received either by a notary who is no longer alive or by one who has ceased to exercise his functions in terms
of article 14, shall be deemed to be valid notwithstanding such defect or defects, and in making such regulations the Minister
may also subject the said validity to such terms and conditions as he may consider appropriate.
(15) Saving any other provision of this article, the Minister responsible for notarial affairs may by regulations provide that
no action shall be brought in terms of subarticle (4) to annul a notarial act having one or more of the defects mentioned in subarticle
(2) and which had been received either by a notary who is no longer alive or by one who has ceased to exercise his functions
in terms of article 14, and in making such regulations the Minister may also subject the said validity to such terms and conditions
as he may consider appropriate.
(16) (a) The applicability of this article to public wills shall be limited to subarticles (1) and (2) and to the provisions
of this subarticle.
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(16) (b) A will which is affected by any of the defects mentioned in subarticle (1)(d) and (e) or in any paragraph of subarticle
(2) shall not be declared null or be annulled, as the case may be, for the sole reason that any of the formalities required therein
has not been complied with if, after the death of the testator, the person having an interest in his succession and who brings an
action for the declaration of nullity of the will or its annulment, though aware of the cause of nullity or annulability of
the will, either confirmed the will or voluntarily gave execution thereto.
(16) (c) No action shall lie in terms of paragraph (b) unless it is brought within the peremptory term of ten years in case of
any of the defects mentioned in subarticle (1)(d) and (e) and five years in the case of any of those mentioned in subarticle (2),
and the said terms shall start running from the date of the opening of succession of the testator, unless the will is an unica charta one published before the 1st March 2005, in which case the aforesaid terms shall start running from the date of the opening of succession
of the surviving testator.".
(a) in the marginal note thereof, after the word "null" there shall be added the words "or is annulled";
(b) for the words "null and void" there shall be substituted the words "null or is annulled"; and
(c) at the end thereof there shall be added the following proviso:
"Provided that where the original of the act is deposited in the Archives, the communication shall also be made to the Archivist
who, with regard to such act, shall have the same duty imposed on the notary by this article.".
Amendment of article 41 of the principal Act.
Amendment of article 42 of the principal Act.
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Amendment of article 43 of the principal Act.
(a) for the words "the proviso to" there shall be substituted the words "subarticles (14) and (15) of"; and
Addition of new article to the principal Act.
(b) for the word "parties" there shall be substituted the word "appearers".
"Notarial corrective act.
45A. (1) Without prejudice to the rights already acquired by third parties and subject to the provisions of this article,
a notary shall have, with regard to an inter vivos act in his records, in this article referred to as "the original act", the right to make at any time, a declaratory act
rectifying any of the errors or omissions contained therein. The declaratory act, in this article referred to as a "notarial
corrective act", shall be preserved and registered in the records of the notary.
(2) A notarial corrective act shall not affect the intention of the parties, their consent given in the original act or any
of their personal or real rights emanating therefrom.
(3) A party who agrees with the contents of the notarial corrective act may appear thereon to signify his agreement whether
in whole or in part, and in such a case the provisions of subarticle (9) shall not apply to such party.
(4) A party who has not appeared on the notarial corrective act may appear on a subsequent act published by the same notary and
signify his agreement with the contents of the notarial corrective act.
(5) The errors or omissions that may be the subject-matter of a notarial corrective act are the following:
(a) typing or spelling errors;
(b) details relating to the boundaries of immovables;
(c) discrepancies between words and figures;
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(d) mistaken currency conversions;
(e) mistakes in tax calculations; (f) mistakes in the root of title;
and
(g) any other matter which the
Minister responsible for notarial affairs may by regulations determine.
(6) A note for the registration of the notarial corrective act shall be filed in the Public Registry in terms of article 50 containing
the errors or omissions rectified and whether any of the parties appeared on the act.
(7) The Director of Public Registry shall accept a note so filed notwithstanding any provision of this Act or any other law.
(8) The notarial corrective act shall not be effective against third parties until the relative note has been filed in the Public
Registry.
(9) The notary shall cause a copy of the notarial corrective act to be sent by registered mail to the present or last known address
of the parties to the original act or their agents or representatives or successors in title, but this provision shall not apply
to any of the parties who appeared on the notarial corrective act in terms of subarticle (3) or on a subsequent act in terms of subarticle
(4).
(10) Except for a party who had signified his agreement in terms of subarticles (3) or (4), and to the extent that he has
done so, the declarations made in a notarial corrective act may be rebutted by any of the parties to the original act or their agents
or representatives or their successors in title within the peremptory term of two years from the date of receipt of the copy mentioned
in subarticle (9), after which time the declarations on the notarial corrective act shall form an integral part of the contents
of the original act.
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Amendment of article 46 of the principal Act.
Substitution of article 47 of the principal Act.
(11) Such rebuttal shall be made by another declaratory act, duly enrolled in the Public Registry in terms of article 50, indicating
such rebuttal, in whole or in part, of the notary’s rectification of errors or omissions, and such note of enrolment shall
have the effect of annulling the declarations made by the notary in the notarial corrective act, with regard to all the parties to
the original act including any party who may have appeared on a notarial corrective act or a subsequent corrective act
in terms of subarticles (3) or (4).
(12) Where a notary has died or ceased to perform his functions in terms of articles 14 or 15(1), the notarial corrective act may
be made by any notary.
(13) Any notarial corrective act purporting to add, reduce, modify or cancel any real or personal rights or to affect
the privileged or hypothecary standing or ranking of any creditor shall be null, and may be rebutted in terms of subarticle (11).
(14) A notary who negligently publishes a notarial corrective act or a subsequent corrective act as stated in subarticle (13) shall
be liable in damages towards any of the parties or his successors in title adversely affected by such act.".
"(2) The notary shall make annotations relating to registrations made in any registry, to the rescission, variation, cancellation, validation or convalidation made by notarial act, to notarial corrective acts and subsequent corrective acts, to the declaration of nullity of an act or its annulment made by a judgement of the competent judicial authority, and to any other declaration relating to the act itself and which the notary is bound to make according to law.".
"47. (1) If the notary receiving an act of rescission, cancellation, variation, validation, convalidation, or a notarial
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corrective act or a subsequent corrective act is the same who had received the original act, he shall within fifteen days enter in
the margin or at the foot of the original act and of its registration in the register a reference to such act.
(2) Where the original act referred to in subarticle (1) is deposited in the Archives, the notary shall, besides entering the
reference in the register as provided in subarticle (1), submit to the Archivist within one month of receiving the act a copy of
the note filed in terms of article 50 or, if the act is not so registerable, a copy of the act of rescission, cancellation,
variation, validation, convalidation, or of the notarial corrective act or subsequent corrective act.
(3) If the notary receiving the act of rescission, cancellation, variation, validation, convalidation, or the notarial corrective
act or subsequent corrective act is not the same as the one who had received the act so rescinded, cancelled, varied, validated,
convalidated or corrected, he shall within one month of receiving the act submit to such notary, or to the keeper of such act, and
to the Archivist a copy of the note or of the act as provided in subarticle (2).
(4) The notary who had received the act so rescinded, cancelled, varied, validated, convalidated or corrected or, as the case
may be, the keeper of such act, shall within fifteen days from receipt of the note or copy enter a reference to the act of rescission,
cancellation, variation, validation, convalidation or to the notarial corrective act or subsequent corrective act in the margin or
at the foot of the original act and of its registration in the register and, where the original is deposited in the Archives, the
provisions of this subarticle shall mutatis mutandis apply to the Archivist.
(5) The notary who had received the act so rescinded, cancelled, varied, validated, convalidated or corrected, or the keeper of
such act, and the Archivist shall issue a receipt to the notary submitting the note or the copy, as the case may be, and the Archivist
shall annex the note or the copy to the original act.
(6) Where the Archivist receives the note or the copy in terms of subarticle (3) but the original act is not deposited in the
Archives, the Archivist shall return the document to the notary or the keeper of his acts advising him that the original is not yet
so deposited.".
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Repeal of articles 48 and
49 of the principal Act.
Amendment of article 50 of the principal Act.
(a) subarticle (5) thereof shall be substituted by the following:
"(5) It shall not be lawful to draw up two or more notes on one sheet."; and
Repeal of article
51 of the
principal Act.
Amendment of article 52 of the principal Act.
(b) in subarticle (6) thereof the words "in a book kept for the purpose" shall be deleted.
(a) subarticle (1) thereof there shall be substituted by the following:
"(1) Notwithstanding any covenant to the contrary, every notary must register in the Public Registry, within one month
from the date of the relative act, unless registration shall have been made on the demand of other persons any assignment, subrogation,
reduction or cancellation of a hypothec or privilege, provided that in the case of a privileged debt not yet registered the term
specified in this subarticle shall run from date of registration of such debt."; and
(b) subarticle (3) thereof shall be substituted by the following:
Repeal of articles 53 and
54 of the principal Act.
"(3) The notary shall, together with the note by means of which an assignment, subrogation, reduction or cancellation of any hypothec or privilege is registered, present to the Director of the Public Registry a copy thereof which shall be countersigned by the said Director who shall affix thereto the date and his signature as evidence of the presentation.".
C 565
(a) in subarticle (3) thereof, for the words "shall bear a progressive number." there shall be substituted the words
"shall bear a progressive number:" and immediately thereafter there shall be added the following new proviso:
"Provided that where any of the written pages or annexes bears a similar progressive number, the notary shall either rectify
the error and initial the correction or add to the page number a distinguishing alphabetical letter which he shall initial. In the
latter case, he shall at the end of the volume make a signed declaration referring to the pages where such letters have been added
and shall state that he has done so to avoid duplication in the volume’s pagination.";
(b) in subarticle (4) thereof:
(i) the words "and the acts of delivery of secret wills" shall be deleted;
(ii) immediately after the words "written pages" there shall be added the words "and annexes";
(c) in subarticle (5) thereof the words "and of the acts of delivery of secret wills" shall be deleted;
(d) in subarticle (6) thereof the words "or act of delivery" shall be deleted;
(e) subarticle (7) thereof (including its proviso) shall be substituted by the following:
"(7) (a) Both wills and acts inter vivos shall be numbered within twenty-four hours of the execution thereof.
(b) The numbering of the written pages and annexes, if any, shall be made within twenty-four hours of the execution of a will, and
within thirty days in the case of any other act."; and
(f) immediately after subarticle (7) thereof, as substituted, there shall be added the following new subarticles:
"(8) Notwithstanding any other provision of this
Amendment of article 55 of the principal Act.
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Act and any other law, the notary may, for the purposes of subarticle (2), hand over to a binder the original acts and wills, their
annexes, indexes and registers to be bound as required by this Act:
Provided that the notary shall at no moment release contemporaneously from his possession the originals and their respective registers.
Amendment of article 59 of the principal Act.
Amendment of article 60 of the principal Act.
Amendment of article 61 of the principal Act.
Substitution of article 62 of the principal Act.
(9) The Minister responsible for notarial affairs shall by regulations made with the concurrence of the Notarial Council prescribe the conditions under which a notary may hand over the documents mentioned in subarticle (8).".
"(3) The proviso to subarticle (3) of article 55 shall
mutatis mutandis apply.".
"62. No volume of the original acts or of the registers shall contain more than five hundred pages:
Amendment of article 64 of the principal Act.
Provided that where any single act is contained in more than five hundred pages, the original or register of such act may be contained in a separate volume containing that sole act, and in such case such volume may consist of more than five hundred pages.".
(a) in subarticle (1) thereof, the words "and of the acts of delivery of secret wills" shall be deleted; and
(b) in subarticle (3) thereof, the words "and the number of the first page of the act itself" shall be deleted.
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(a) the present provision shall be renumbered subarticle
(1) thereof; and
(b) immediately after subarticle (1) thereof, as renumbered, there shall be added the following new subarticles:
"(2) For the purposes of subarticle (1), the binder who in terms of article 55(8) has in his possession the originals, their
annexes, indexes and registers shall, during such time, be subject to the same civil and criminal responsibility as the notary.
(3) For the purposes of this Act and any other law, the notary’s civil and criminal responsiblity in case of disclosure to third
parties of confidential information resulting from the originals, their annexes, indexes and registers shall extend to the binder.".
(a) in subarticle (1) thereof:
(i) for the words "article 81(4), public wills, the acts of delivery of secret wills, and" there shall be substituted
the words "article 81(5), public wills and";
(ii) for the words "will, the act or" there shall be substituted the words "will or"; and
(b) in subarticle (2) thereof, for the words "testamentary dispositions of the deceased testator." there shall
be substituted the words "testamentary dispositions of the deceased testator:" and immediately thereafter there shall be
added the following new proviso:
"Provided that with regard to such will published before 1st March 2005, the notary shall, instead of an extract, issue
a declaration containing the substance of the testamentary dispositions of the deceased testator in such a way that the dispositions
of the surviving testator shall not be divulged. Where the notary encounters difficulties in drawing up the declaration, he shall
have the right to apply to the Court of Voluntary Jurisdiction requesting it to give him directions as to the manner in which the
declaration is
Amendment of article 66 of the principal Act.
Amendment of article 68 of the principal Act.
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Amendment of article 69 of the principal Act.
Amendment of article 70 of the principal Act.
Amendment of article 71 of the principal Act.
to be made; and the court shall give him such directions as it deems fit.".
(a) for the words "The notary" there shall be substituted the words "Saving the provisions of the Notarial Acts
(Temporary Provisions) Act and article 55(8) of this Act, the notary"; and
(b) for the word "court" there shall be substituted the words "a court".
(a) for the marginal note thereof there shall be substituted the following: "The notary is the owner of his
registers.";
(b) in subarticle (1) thereof the words from "He shall be" to the words "of this Act." shall be deleted; and
Substitution of heading of Title III of Part III of the principal Act.
Amendment of article 74 of the principal Act.
(c) in subarticle (3) thereof for the words "Such acts" there shall be substituted the words "The original acts".
(a) in subarticle (1) thereof, immediately after the words "such acts" there shall be added the words "or
issue the declaration referred to in the proviso to article 68(2)";
(b) in subarticle (2) thereof and in the proviso thereto for the words "copy or extract" there shall be substituted
the words "copy, extract or declaration";
(c) in subarticle (3) thereof for the figure "81(4)" there shall be substituted the figure "81(5)";
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(d) in subarticle (4) thereof:
(i) for the words "copy of a will" there shall be substituted the words "copy of a will, extract thereof or declaration";
(ii) for the word "abstract" wherever it occurs there shall be substituted the word "extract";
(e) subarticle (6) thereof shall be renumbered as subarticle (7); and
(f) immediately after subarticle (5) thereof there shall be added the following new subarticle:
"(6) Where an extract is issued in terms of article
68(2) or a declaration is issued in terms of the proviso to such subarticle, the notary shall state in writing at the end thereof
to whom such extract or declaration has been issued after duly ascertaining that the provisions of such subarticle or proviso
apply.".
(a) for the marginal note thereof there shall be substituted the following: "Contents of copies, extracts
and declarations.";
(b) in subarticle (1) thereof for the word "original" there shall be substituted the words "original or the register";
(c) in subarticle (2) thereof for the word "original" there shall be substituted the words "original or the register";
and
(d) immediately after subarticle (2) thereof, as amended, there shall be added the following new subarticle:
"(3) Besides the information referred to in the proviso to article 68(2), a declaration made in terms of such proviso shall contain
the date and time when the will was executed, the name of the notary who received it, and the full particulars of the deceased testator
and the witnesses, the attestors and the interpreters, if any, and a transcription or the substance of any annexe to the will but
Amendment of article 75 of the principal Act.
Amendment of article 76 of the principal Act.
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only to the extent that such annexe refers to the deceased testator:
Substitution of article 77 of the principal Act.
Provided that where the contents of an annexe refer exclusively to the deceased testator, the notary may issue a photocopy of such annexe.".
"Issue of copies, extracts and declarations.
77. (1) Every copy and extract shall bear at the end the date of its issue and shall be authenticated by the notary who shall
affix his signature thereto and the words "in conformity with the original" or "in conformity with the register"
or other similar expression.
(2) Every declaration in terms of the proviso to article 68(2) shall bear at the end the date of its issue, and the notary shall
affix his signature thereto and the words "declaration made in terms of the proviso to article 68(2) of Chapter 55"
or other similar expression.
(3) If the copy, extract or declaration consists of more than one leaf, each leaf shall be signed in its margin or at its foot by
the notary or the Archivist.
(4) The notary shall transcribe or make a photocopy of any or all of the annexes to the act or register if he is requested to do
so by the person requiring the copy or the extract.
(5) The notary shall transcribe at the end of every copy, or in the margin of its first page, the references to other acts entered
in the original act or in the register as the case may be.".
Amendment of article 79 of the principal Act.
Amendment of article 81 of the principal Act.
63. In the English version of paragraph (a) of article 79 of the principal Act, for the words "procès-firebox" there shall be substituted the words "procès-verbaux".
(a) in subarticle (1) thereof for the words "copy or extract" there shall be substituted the words "copy,
extract or declaration";
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(b) in subarticle (2) thereof for the word "null" there shall be substituted the words "null or annulable";
(c) subarticle (4) thereof shall be renumbered as subarticle (5); and
(d) immediately after subarticle (3) thereof there shall be added the following new subarticle:
"(4) The notary shall, in respect of the services provided in terms of article 84C, be entitled to receive from the transferee
the fees fixed in the Tariff and, where there is a contract of engagement, the fees agreed upon in such contract. He shall also be
entitled to the reimbursement of all expenses and accessory charges.".
Repeal of article
83 of the
principal Act.
Addition of new Part and article to the principal Act.
Notary may examine title.
Examination of title.
Where a notary examines title.
"PART IIIB
OF THE EXAMINATION OF TITLE
84C. (1) A notary is empowered to compile documents conducive to establishing both the title to an immovable property and the
causes of preference among creditors affecting such title. He has the right to interpret the compiled documents and give advice thereon.
In this Act, this process of compilation, interpretation and advice is referred to as "the examination of title" or cognate
expressions.
(2) Without prejudice to his responsibility in terms of this article, the notary shall have the right to delegate any
or all of these powers to persons he deems trustworthy.
(3) The examination of title shall be carried out in terms of regulations made under this article.
(4) A notary may examine title whenever he is instructed to do so by a written contract of engagement whose requisites shall be
laid down by regulations.
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Diligence and responsibility.
(5) A notary who publishes a notarial act of transfer of ownership of immovable property or other real rights over such property
shall be deemed to have been instructed by the transferee to examine its title:
Provided that the transferee may, by an express declaration recorded in the notarial act, exempt the notary from the obligation
imposed on him in terms of this subarticle or limit the extent of such obligation in any way the transferee deems fit:
Provided further that regulations may list the instances where a notary shall be exempt from examining the title.
(6) Where a notary publishes a notarial act containing a transaction other than the transfer of ownership of immovable property
or other real rights over such property, or where he authenticates a private writing containing a transaction referring to
such property, his obligation to examine title shall arise if, and to the extent that, specific regulations are made with regard
thereto.
(7) Notwithstanding the provisions of this Act or any law:
(a) a notary’s responsibility for the examination of title shall be regulated by, and be strictly interpreted according
to, this article and the regulations made thereunder;
(b) where a notary examines title he shall exercise the diligence required by the regulations referred to in paragraph (a);
(c) where he examines title in terms of the regulations, he shall be deemed to have acted with due diligence;
(d) only the following persons may bring an action against a notary in connection with the examination of title which he has
carried out:
(i) the person with whom he has entered into a contract of engagement in terms of subarticle (4),
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(ii) the transferee referred to in subarticle (5), or
(iii) the persons indicated in regulations which may be made in terms of subarticle (6).
Report. (8) Where a notary receives instructions in terms of subarticle (4) or where he is bound to examine title in terms of this article, he shall, at the termination thereof, draw up a written report with such contents as may be required by regulations made under this article.
Preservation of documents.
(9) The notary shall preserve for a period of five years the documents he compiles for the examination of title. Such period shall run from the date he issues the report where the examination was made in terms of subarticle (4), and from the date of publication of the act where the examination was made in terms of subarticles (5) or (6), and in the case of a private writing referred in subarticle (6) from the date it is authenticated by the notary.
Actions. (10) An action brought against a notary by a person mentioned in subarticle (7)(d) alleging any act or omission of the notary regarding the examination of title shall be barred by the peremptory term of five years which starts running from the dates mentioned in subarticle (9).
Other services.
(11) Nothing in this article shall preclude the notary from being engaged only to compile any of the documents referred to in subarticle (1), or to interpret or give advice on such documents which he or a third party has compiled, but this shall not be deemed to be the examination of title as defined in this article. Such a service shall be regulated by an ad hoc contract of engagement made in terms of regulations made under this article.
Regulations. (12) The Minister responsible for notarial affairs shall from time to time make regulations, after consulting the Notarial Council, prescribing any matter referred to in this article including, but not limited to:
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Amendment of article 88 of the principal Act.
(a) the manner in which and the extent to which a notary examines title;
(b) the exemptions from the obligation to examine title;
(c) the applicability or otherwise of this article both to notarial acts containing transactions other than the transfer of ownership
of immovable property or other real rights over such property, and to transactions referring to such property made by a private writing
authenticated by a notary;
(d) services analogous to but short of the examination of title in terms of this article;
(e) the degree of diligence required of the notary;
(f) the formalities of a contract of engagement; and
(g) the contents of the report and related matters.".
(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:
Amendment of article 89 of the principal Act.
"(2) Without prejudice to the generality of subarticle (1), the Code of Ethics made in terms of article
92(2) may define any matter referred to in subarticle (1) as
a breach of ethics.".
(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) Where within a period of five years the
Council has admonished a notary three times for conduct,
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abuse, negligence or a breach of ethics, he may be suspended from office by the Court of Revision for a period from one to
six months upon an application being made to the Court by the President of the Council.".
(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 Notarial Council shall have the power to make and amend, with the approval of the Notarial College, regulations
respecting a Code of Ethics for Notaries.".
Amendment of article 92 of the principal Act.
Addition of new article to the principal Act.
"Annual fee due to the Council.
93A. Unless a higher fee is prescribed in the regulations made in terms of article 92(1), the annual fee due by each notary
to the Notarial Council shall be calculated on the basis of one euro (€1) for every act published by a notary during any
calendar year (to the exclusion of wills and acts in terms of Part IIIA), and such fee shall become due at the end of every calendar
year and payable upon presentation of the acts in terms of article
94A(12)(iv). The annual fee shall be revised according to the cost of living index every ten years from basis year 2011 and, in default
of such an index, in terms of regulations made under this Act.".
Addition of new Part and articles to the principal Act.
Review of of notarial acts.
"PART IVA
OF THE REVIEW OF ACTS
94A. (1) For the purposes of this Part and Part VI, unless the context otherwise requires, the following definitions shall apply:
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"acts" means the original inter vivos acts except those published in terms of Part IIIA;
"Chief Notary" means the Chief Notary to Government, and includes a Notary to Government duly delegated by him and approved
by the Court;
"basis year" means any calendar year starting on the first day of January and ending on the thirty first day of December
of that year;
"Council" means the Notarial Council; "Court" means the Court of Revision of
Notarial Acts established by article 110;
"inspection" has the meaning assigned to it in Part VI;
"Minister" means the Minister responsible for notarial affairs;
"notary" includes notary keeper;
"partial incapacitation" has the meaning assigned to it in subarticle (19);
"period of presentation" means the months from April to September both inclusive immediately following the
end of any basis year;
"period of review" means a continuous period of twelve months starting on the first of July of the year immediately following
the end of a basis year, during which period the notarial acts are reviewed;
"President of the Council" means the President of the Council acting in such a capacity in the name of the Council, or his
delegate;
"previous basis year" means the basis year immediately preceding the period of presentation, and shall include
any part thereof;
"review" has the meaning assigned to it in article 94B;
"review officers" means the persons holding such an appointment in terms of subarticle (4);
"wills" means the original wills.
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Council’s duty.
Appointment of review officers.
(2) It shall be the duty of the Council to ensure that all acts published in any basis year are presented to a review officer during
the period of presentation so that the latter may review them during the period of review, and that by not later than the end of
the calendar year following the completion of the period of review, the acts are inspected by the Court in terms of this Act.
(3) For the purposes of subarticle (2), the President of the Council shall from time to time by application to the Court submit
the names of such qualified persons as the Council deems appropriate for appointment as review officers, and the Court shall
within fifteen days approve or otherwise their proposed appointment.
(4) The Council shall appoint as review officers the candidates so approved for such periods of time, which may not be less than
one year, as the Council shall determine.
Qualifications (5) (a) No person shall be qualified to be appointed as review officer unless he holds or has held the warrant of notary, advocate or legal procurator for at least two years:
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Provided that a notary’s appointment as review officer shall be conditional on his resigning his office as notary as provided in
article 14(1)(d); so however that, if he is not re-appointed as review officer or if he resigns the office of review officer,
he may within three months of the date when he could have been re-appointed review officer or from the date of his resignation
as review officer, apply to the Minister responsible for notarial affairs to be granted again the warrant to exercise his profession
as notary and, in such case, notwithstanding any other provision of this or any other law and provided the President of the Council
confirms to the Minister that the Council is in possession of the documents required by subarticle (12)(a), (b) and (c), the Minister
shall submit his name to the President of Malta who shall forthwith re-appoint him notary, and his re-appointment shall be published
in the Gazette in terms of article
5(1).
(b) If a review officer is not so re-appointed following his term as a review officer or if he resigns, he shall within seven
days of the termination of his term as review officer or of his resignation hand over to another review officer as directed
by the President of the Council all acts, registers, indexes, notes and other documents in his possession in view of
his former appointment and, if he fails to do so, apart from any other liability in terms of this or any other law, he shall be awarded
by the Court at the instance of the President of the Council a penalty of two hundred and fifty euro (€250) due as a civil debt
in favour of the Council for every week or part thereof during which he fails to comply.
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Oath of office. (6) A review officer shall not enter into his duties unless he has taken before the Court the oath of office as follows: "I, ...................... swear to exercise to the best of my ability the office of review officer established by the Notarial Profession and Notarial Archives Act, Chapter 55 of the Laws of Malta. So help me God.":
Provided that a review officer who, immediately following a period in such a capacity, is re-appointed for a further period or periods shall not take the oath of office again.
Duties and powers of review officers.
Review officers are answerable to the Council in all administrative matters.
(7) A review officer shall have the duty and the power -
(a) to accept in the name of the Council the presentation of acts published by notaries;
(b) to review in the name of the Court the acts of notaries for the purposes of the relevant provisions of this
and any other law;
(c) to collect from notaries the fees due for the review and the Council’s annual fee, and forward them to the Council as
soon as he receives them; and
(d) to perform such other functions as may be assigned to him by this or any other law.
(8) (a) In all administrative matters related to the process of acceptance of acts which notaries present during the period
of presentation, review officers shall act under the direction of the Council to which they shall be answerable; in all other
matters including decisions taken when the acts are presented and during the review of the acts, review officers shall act independently
of the Council but subject to any direction of the Court to which they shall be answerable.
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(b) A review officer may apply to the Court for directions concerning the manner in which he may or should act in connection with
any matter concerning the presentation of acts and their review; and the Court may give such directions, if any, as it thinks fit.
Fees. (9) Notaries shall be charged for such review a fee of three euro (€3) per act which shall be due to the Council at the end of the basis year when the act was published, and the fee shall be collected by a review officer upon the presentation of the acts by the notary as provided in subarticle (12). Such fee shall be revised every ten years from basis year 2011 according to the cost of living index and, in default of such an index, in terms of regulations made by the Minister after consulting the Council.
Presentation of acts.
(10) (a) During the period of presentation all notaries shall present to a review officer on dates and
in places mentioned in the notice referred to in paragraph (d), in volumes bound as required by this Act, all the acts
they published during the previous basis year including their respective indexes. They shall also present the copy of the notes of
enrolment and reference given to the notary by the Director of Public Registry in terms of articles 50(6) and 52(3):
Provided that the presentation of acts published by notaries referred to in article 22 shall be made at the Archives and the review
shall take place therein.
(b) The Council shall ensure that the presentation of such acts be conducted in a transparent and orderly manner.
(c) (i) For the purposes of paragraphs (a) and (b), the Council shall in January of every year cause to be published in the Gazette
a notice containing the following:
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(i) a list of the names of all notaries who in the previous basis year were known to have practised their profession;
(ii) a list of the names of all keepers of the acts of notaries who practised their profession in the previous basis year;
(iii) a list of the names of the review officers assigned to each of the notaries mentioned in sub- paragraph (i);
(iv) a list of the names of the review officers assigned to each of the notaries keeper mentioned in sub-paragraph (ii); and
(v) a time-table with the dates when and the place where the acts, including their indexes, published during the previous
basis year are to be presented to the respective review officer for his review.
(ii) For the purposes of subarticle (16), the same notice shall also contain a time-table with the dates when and the place where
notaries and notaries keeper are to present to the Chief Notary for his review the wills, including their indexes, published during
the previous basis year.
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(d) Notwithstanding any other provision of this or any other law, the publication of the notice mentioned in paragraph (c)(i)
and (ii) shall be deemed for all purposes of law to be sufficient notice to the notaries mentioned therein of their obligation to
present on the dates and in the places mentioned in the notice the acts and wills including their indexes, and all other
documents and to make the payments required by this and any other article of this Act.
(e) The Council shall cause to be published in the Gazette any amendment it makes to the notice mentioned in paragraph (c)(i)
and (ii), but such amendment shall not be effective with regard to a notary or notary keeper referred to therein unless at least
one month elapses from the date when he is so informed by registered letter.
Declaration. (11) (a) Together with the presentation of acts, the notary shall submit a written declaration containing a statement of:
(i) the number of volumes presented,
(ii) the number of acts in each volume, and
(iii) the number of pages of acts in each volume.
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Other documents.
(b) The review officer shall immediately check whether the number of volumes, the number of acts and the number of pages tally
with the declaration and, if there is any discrepancy, the notary shall have the option either to re-present the acts within such
time as the review officer shall determine which shall in no case exceed seven days, together with a declaration that tallies with
the aforementioned details of the number of volumes, acts and pages, or to give his consent to the review officer to record on
the declaration what the discrepancies are and the notary shall on the same day effect the required corrections regarding the
number of volumes, acts and pages and make any corrections in terms of this Act in the progressive number of the acts and the page
numbers.
(c) The review officer shall make two photostatic copies of the original with his comments, if any, one copy of which
shall be authenticated by the review officer and given to the notary as a receipt of the acts that have been so presented, and the
other shall be authenticated by the notary and kept by the review officer.
(d) The notary shall appear before the review officer either personally or through a special attorney constituted
in writing.
(12) Together with the declaration required by subarticle (11), the notary shall also submit to the review officer
the following:
(a) the insurance certificate referred to in article 10A, unless he presents a copy of the Court’s decree exempting him from
complying with such a requirement;
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(b) the personal details of the notary and such other information, including details of notarial trust accounts, as may be
required in terms of regulations made by the Minister after consulting the Notarial Council;
(c) a copy of the extract from the Gazette referred to in article 10B(2) if there has been a change in the notary’s name or
surname; and
(d) the fees due for the review in terms subarticle (9), and the Council’s annual fee for the previous basis year in terms
of article 93A.
Wills. (13) It shall be the duty of the Chief Notary to ensure that all wills published in any basis year are presented to him in the Archives during the period of presentation so that he may review them during the period of review, and that by the end of the calendar year following the completion of the period of review such wills are inspected by the Court in terms of this Act.
(14) For the purposes of subarticle (13), all notaries shall present to the Chief Notary in bound volumes as required by this
Act the wills which they published during the previous basis year together with a declaration regarding such wills containing
information similar to that required in subarticle (11)(a) as well as the fee referred to in subarticle (15), and all the provisions
on the functions and powers of review officers regarding the presentation of acts shall mutatis mutandis apply to the Chief Notary, and the notaries shall have the same duties with regard to such presentation.
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Oath of office of Chief Notary.
Failure to comply.
(15) Notaries shall be charged for such review a fee of three euro (€3) per will which shall be due to the office of the
Notary to Government at the end of the basis year when
it was published and shall be payable upon the
presentation of such wills. This fee shall be revised every ten years from basis year 2011 according to the cost of living index and,
in default of such an index, in terms of regulations made by the Minister after consulting the Council.
(16) The presentation of wills shall be made to the Chief Notary in terms of the notice referred to in subarticle (10)(c)(ii)
and all the provisions of subarticles (10), (11) and (12) shall mutatis mutandis apply:
Provided that where the notary appears through a special attorney, the Chief Notary shall not proceed to accept the presentation of
wills unless the special attorney is also a notary who shall be bound to observe the same professional secrecy and confidentiality
as required of the notary who published them.
(17) The Chief Notary to Government shall not enter into his duties in term of this article until he takes before the Court the
following oath: "I, ............................. swear to exercise to the best of my ability the office of accepting the
presentation of and reviewing wills in terms of the Notarial Professions and Notarial Archives Act, Chapter 55 of the Laws of Malta,
and to observe the same professional secrecy and confidentiality as required of the notaries who published them. So help me God.".
(18) (a) If a notary -
(i) fails to appear before the review officer and present to him the acts as required by this article, or
(ii) fails to make a complete declaration with regard to the acts in terms of subarticle (11)(a), or
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(iii) fails to present the insurance certificate or the Court decree as required by subarticle (12)(a), or
(iv) fails to effect the full payments as required by subarticle (12)(d),
he shall, subject to the following provisions of this article, be liable until he complies to a fine (ammenda) of fifty euro (€50) per week or part thereof, to start running from the date of filing of the application mentioned in the proviso
to this paragraph, and he shall be partially incapacitated from exercising his functions until he complies:
Provided that the review officer shall grant the notary a period of one month to comply and, if the notary fails to do so, the review
officer shall, within three days of such failure, file an application in the Registry of the Court informing the Court of the notary’s
failure and requesting it to order the Registrar to issue a formal subpoena in terms of article
120.
(b) The provisions of paragraph
(a) shall mutatis mutandis apply to -
(i) the presentation of wills to the Chief Notary in terms of subarticle (14),
(ii) the submission in terms of subarticle (14) of a complete declaration regarding such wills,
(iii) the submission of a copy of the insurance certificate or the Court decree, and
(iv) the payment of the fee in terms of subarticle (15).
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Partial incapacitation
Cap. 16.
(c) If the notary fails to appear before the review officer or the Chief Notary on the date and at the place fixed in the subpoena
and produce to him the originals, indexes and documents referred to in the subpoena and make the payments mentioned therein,
the review officer or the Chief Notary, as the case may be, shall by application filed within three days of the date when the notary
should have appeared before the review officer or the Chief Notary bring the notary’s alleged failure to the cognizance of the
Court and request it to take the appropriate action.
(d) The Court shall by decree served on the notary and the Attorney General order that the notary and Attorney General make
written submissions on the matter, and it shall also set a date for the hearing of the case. If the facts are proved, the Court shall
either -
(i) impose the disciplinary punishment mentioned in paragraph (a), and partially incapacitate the notary until he complies, or
(ii) suspend him in terms of article 132.
(e) The Court’s powers in terms of this subarticle shall be without prejudice to its powers under article 123.
(19) (a) A notary who has been partially incapacitated from the exercise of his functions may not, during such incapacitation,
exercise any notarial functions but he shall have the right and the duty -
(i) to sign and submit notices for the payment of duties and taxes in terms of fiscal laws,
(ii) to sign and deliver notes in terms of articles 50 and 52 of this Act, and notes of privileges and hypothecs in terms
of the Civil Code,
(iii) to sign and submit applications at the Land Registry, and
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(iv) to give copies, extracts and make declarations as required by article 74(1).
(b) The order of partial incapacitation shall be enforceable notwithstanding an appeal against the Court’s declaration of responsibility
of the notary, or the award of a disciplinary punishment or the order of partial incapacitation itself.
(c) Unless the Court orders the seizure of documents in terms of article 123, the provisions of articles 20, 70(1) and 126 shall
not apply when a notary is partially incapacitated.
(d) (i) Where following an application filed by a review officer in terms of subarticle (18)(c), the Court partially incapacitates
the notary, and the Chief Notary files a similar application with regard to the same basis year, the Court shall not incapacitate
the notary for a second time but the incapacitation imposed following the review officer’s application shall likewise be deemed
to apply to the notary with regard to the application of the Chief Notary, provided that the incapacitation shall not extend
for more than six months.
(ii) The provisions of subparagraph (i) shall apply mutatis mutandis where the notary is partially incapacitated following the Chief Notary’s application and the review officer files a similar application
with regard to the same basis year.
(e) A notary who publishes a notarial act while he is subject to partial incapacitation shall, at the instance
of the Attorney General or the President of the Council, be deprived of his office and in addition, but in the Court’s
discretion, he shall be liable to a fine of not more than five thousand euro (€5,000) for any notarial act which
he publishes during such incapacitation.
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(f) Notwithstanding any provision of this or any other law, no notarial act shall be invalid for the sole reason that
it was published by a notary while he was subject to partial incapacitation.
(g) A notary who has been subject to partial incapacitation for a continuous period of six months shall be deprived of
his office by the Court at the instance of the Attorney General or the President of the Council, and all the provisions of this
Act regarding deprivation of office shall apply including the appointment of a notary keeper which the Court shall order in
the same decree.
Rehabilitation (20) (a) Where a notary who is subject to partial incapacitation complies with the requirements of subarticles (10), (11), (12), (14) and (16), the review officer or the Chief Notary, as the case may be, shall immediately by note filed in the Registry of the Court inform the Court of such compliance.
(b) The Court shall forthwith by decree in camera rehabilitate the notary in the full exercise of his functions.
(c) The provisions of article
14(2) shall not apply to such rehabilitation.
(d) Both the note and the decree shall be served on the notary, the Attorney General and the President of the Council.
Publication. (21) The provisions of article 16 shall apply to partial incapacitation and rehabilitation therefrom.
Other provisions.
(22) (a) If the notary who fails in his obligations in terms of subarticles (10), (11), (12), (14) or (16) is the President or
another member of the Council he shall, unless he has voluntarily resigned, forfeit his seat on the Council and, in the case of the
President of the Council, his functions and powers shall be taken over by the most senior notary in the Council.
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(b) Regulations made under article 92(1) shall provide for such eventualities and, in default, the Minister responsible
for notarial affairs shall make regulations to ensure transparency in such matters.
Review. 94B.(1)(a) Review officers shall review the acts and the Chief Notary shall review the wills.
(b) During the review, care shall be taken to ascertain whether all obligations imposed on notaries by this or any other law have
been complied with, especially the provisions of the law relating to the drawing up and preservation of notarial acts, registers
and indexes, and the payment of duty on documents and other taxes.
(2) When the review is completed, the review officer and the Chief Notary, as the case may be, shall draw up separate reports
in the manner prescribed by regulations and they shall file them in the Registry of the Court.
(3) In their reports, the review officer and the Chief Notary shall list the notary’s breaches of this Act and of any
other law which are punishable by the Court, and they shall propose to the Court the appropriate disciplinary punishments it
could apply and any directions that it could give to the notary.
(4) The notary shall have the right, by means of an application filed within thirty days from the date when a report is served
on him, to demand that the Court set aside in whole or in part the report of the review officer or the Chief Notary. The
application shall be served on the Attorney General who shall have thirty days to reply.
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(5) Where the notary has contested a report or any part thereof, the Court shall consider the notary’s written submissions contesting
the report or part thereof and the Attorney General’s reply, if any, and shall proceed by a decree in camera to confirm or otherwise the reports of the review officer and, or, the Chief Notary and shall award the notary the disciplinary
punishments of admonition and reprimand or fine (ammenda) and may give any other direction in terms of article
124.
(6) (a) Where the notary has not contested a report, the Court shall proceed to confirm it and award the disciplinary punishments
of admonition and reprimand (twiddiba u ëanfira) or fine (ammenda), unless it appears to the Court that the report contains a manifest error of law or of fact in which case the Court shall through
the Registrar send the report back to the review officer or the Chief Notary for his reconsideration. Following his reconsideration,
the Court shall decide whether to accept, reject or vary the review officer’s or Chief Notary’s report and the disciplinary
punishments or directions any of them may have proposed.
(b) The provisions of subarticles (2), (3), (4) and (5) shall mutatis mutandis apply with regard to the reconsidered report of the review officer or the Chief Notary.
(7) (a) Where it appears from the report of the review officer or the Chief Notary that the notary is liable to the
punishment of suspension from or deprivation of office, even if the notary has not contested the report, the Court shall by decree
served on the notary and the Attorney General order that the notary and Attorney General make written submissions on that part of
the report that may give rise to either of the said disciplinary punishments, and shall also set a date for the hearing of the case.
(b) The provisions of subarticles
(4) and (5) shall mutatis mutandis apply.
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(8) Where the notary fails to contest the report or, after he has done so, the facts alleged in the report are proved during
a sitting of the Court, the Court shall, notwithstanding any other provision of this or any other law, opt either to apply the disciplinary
punishment of suspension from or deprivation of office in terms of the relevant provisions of this Act or to partially incapacitate
the notary for a period not exceeding six months until he regularizes his position and it shall also award a fine (ammenda) of fifty euro (€50) per week or part of a week until he regularizes his position.
(9) Where a notary has regularized his position, the provisions of article 94A(20) shall mutatis mutandis apply.
(10) (a) The review officer or the Chief Notary may also at any time during the period of presentation and, or, review request
the notary to present the registers of acts or wills and their respective indexes for the basis year under review.
(b) The review officer or the Chief Notary shall not keep the registers and their respective indexes for more than twenty-
four hours, and he shall be responsible for their custody until they are returned to the notary.
Amendment of article 97 of the principal Act.
(c) If the notary fails to present the registers to the review officer or the Chief Notary when so requested, the provisions of article 94A(18) shall mutatis mutandis apply.".
(a) in paragraph (d) thereof, for the words "this Act;" there shall be substituted "this Act."; and
Amendment of article 98 of the principal Act.
(b) paragraph (e) thereof shall be deleted.
(a) in paragraph (d) thereof, for the words "this Act;" there shall be substituted "this Act."; and
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(b) paragraph (e) thereof shall be deleted.
"(5) The provisions of this article shall apply to acts and registers of acts published up to and including the 31st December 2011 and deposited in the Archives at any time.".
Amendment of article 103 of the principal Act.
Addition of new article to the principal Act.
"General index of notaries.
103A. (1) Each archivist shall keep a general index of notaries whose acts are published on or after the 1st January 2012 and are
deposited in the Archives in terms of law.
(2) The provisions of this article shall also apply to the registers of such acts which may be deposited in the Archives.
(3) The Minister responsible for notarial affairs shall prescribe the manner in which such index is to be kept and the
information it shall contain.".
"110. (1) Supervision over all notaries, the Notarial Archives and the Public Registry shall be exercised by the Court
of Revision of Notarial Acts.
(2) The court shall at all times consist of a retired Judge or a retired Magistrate or a retired advocate who has practised his
profession for over twelve years.
(3) In case of abstention or challenge, another retired Judge or retired Magistrate or retired advocate having the same qualifications
mentioned in subarticle (2) shall take cognizance of the case.
(4) The court shall be a court of law having the functions set out in this Act and such other functions as may be assigned
to it under any other law.".
Amendment of article 105 of the principal Act.
Substitution of article 110 of the principal Act.
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Amendment of article 111 of the principal Act.
(a) for the marginal note thereof there shall be substituted the following: "Decisions to be notified to the
Attorney General, the President of the Notarial Council, the archivist or the notary concerned.";
(b) the present article shall be renumbered subarticle (1)
thereof; and
(c) immediately after subarticle (1) thereof, as renumbered, there shall be added the following new subarticle:
Amendment of article 112 of the principal Act.
Substitution of article 114 of the principal Act.
Amendment of article 115 of the principal Act.
"(2) A copy of such decision, decree, order or written notice of an award shall also be served on the President of the Council.".
(a) the present provision shall be renumbered subarticle
(1) thereof;
(b) the words "or by any of the Visitors separately" in subarticle (1) thereof, as renumbered, shall be deleted; and
(c) immediately after subarticle (1) thereof, as renumbered, there shall be added the following new subarticles:
"(2) An appeal by the archivist or notary in terms of subarticle (1) shall be made only against the Attorney General.
(3) A copy of an application made in terms of subarticle (1) and of all the subsequent records of the case shall, except where
the appellant or respondent is the archivist, be also served on the President of the Council.".
"114. The Registrar of the Court of Magistrates shall act as Registrar of the Court and shall take part in its sittings.".
(a) in subarticle (1) thereof, for the words "of any
C 595
notary." there shall be substituted the words "of any notary and any place where he keeps the notarial acts, registers and
indexes:";
(b) the following proviso shall be added to subarticle
(1), as amended, thereof:
"Provided that with regard to a notary, the powers exercisable by the Attorney General in terms of this subarticle shall mutatis mutandis be exercisable independently by the President of the Council.";
(c) in subarticle (2) thereof, immediately after the words "the Attorney General" there shall be added the words
"or, as the case may be, the President of the Council"; and
(d) for subarticle (3) thereof, there shall be substituted the following:
Cap. 364.
"(3) In the case of visits and inspections mentioned in this article, the provisions of articles 94B(1)(b), 111, 112, 116, 118,
119 and
124, and the provisions of article 19(4) of the
Duty on Documents and Transfers Act shall
mutatis mutandis apply.".
"117. (1) A general inspection of the notarial acts of every notary, their respective indexes and registers shall be made by
the Court once a year following the review carried out in terms of article 94B.
(2) Where the Court has dealt with a report in terms of article 94B, the notarial acts shall be deemed to have been regularly
inspected as provided in subarticle (1).
(3) The originals, together with the respective indexes shall, on the termination of such inspection and following the Court’s
order, be deposited in the Archives by a review officer or the Chief Notary, as the case may be.".
Substitution of article 117 of the principal Act.
Amendment of article 118 of the principal Act.
C 596
Substitution of article 119 of the principal Act.
"Counter- signature of volumes.
119. Each volume of original notarial acts, registers and indexes, and every book and register which the notaries and the archivist
are bound to keep shall be countersigned by the review officer or the Chief Notary who reviewed the notarial acts in terms of article
94B, and by the court in all other cases.".
Amendment of article 120 of the principal Act.
Repeal of article
121 of the
principal Act.
Substitution of article 123 of the principal Act.
(a) for the marginal note thereof there shall be substituted the following: "Procedure where notary is summoned.";
and
(b) for subarticle (1) thereof there shall be substituted the following:
"(1) Where a notary fails to appear before a review officer or the Chief Notary as required by article
94A(18) or where he appears but does not produce what is required by article 94A(10), (11) and (12), he shall, on an application filed
by the review officer or the Chief Notary, as the case may be, be called to do so by means of a formal writ of subpoena issued by
the Registrar in the name of the said Court, which must be served on the notary at least seven days before the new date fixed
for presentation before the review officer or the Chief Notary as the case may be and must specify the acts or wills, registers
and indexes, as well as other documents which the notary is to produce and payments he is to make, the place where and the day and
hour in which he is to attend.".
"123. If any person, summoned as provided in articles 120 or 122, fails to appear before the court, the review officer or the
Chief Notary, as the case may be, and produce the notarial acts, registers, books and indexes specified in the subpoena, the court
may issue a warrant of escort against such person and it may also order the seizure of the documents specified in the writ of
C 597
subpoena.".
"(2) When the contravention consists in any omission on the part of the notary or the archivist, the court shall order such
notary or archivist to do that which he has omitted, within such time as the court shall fix in its discretion.
(3) Where the order is made to the archivist, the court shall direct the registrar to see whether such order is punctually carried
out. If the archivist fails to comply with any such order, the court may suspend the archivist from his office for such time as the
default continues.
(4) Where the order is made to a notary, the court shall direct one of the review officers if the order refers to acts, or the
Chief Notary if the order refers to wills, to ensure that such order is punctually carried out. If the notary fails to comply with
such order, the court may in its discretion order the partial incapacitation of the notary until such time as he complies, and
all the provisions on partial incapacitation shall mutatis mutandis apply.".
"131. (1) A notary who -
(a) is a recidivist in any contravention under articles 68, 68A, 68B and 69; or
(b) offends against any of the provisions of article 12(a), (c)(i), (c)(ii) and (d), article 25(6) or article
26,
shall be liable to a fine (ammenda) of five hundred euro (€500).
Amendment of article 124 of the principal Act.
Amendment of article 125 of the principal Act.
Amendment of article 127 of the principal Act.
Repeal of article
130 of the
principal Act.
Substitution of articles 131 and
132 of the principal Act.
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(2) A notary or archivist who contravenes the provisions of articles 11, 28(1)(a), (i) and (k), 34, 35, 36, 37, 38,
44, 55, 58, 60, 62, 64, 68, 68A, 68B, 69, 100, 103 and 105 shall
be liable for every contravention, to a fine (ammenda) of fifty euro (€50).
(3) The notary who during his suspension or incapacitation (except for partial incapacitation), issues any copy, extract or
declaration shall be liable to a fine (ammenda) of thirty euro (€30).
(4) Saving the provisions of articles 88, 89 and 143, the notary who contravenes any other provision of this Act for which
there is no specific disciplinary punishment shall be liable for each such contravention to a fine (ammenda) of ten euro (€10).
(5) Where, with reference to the same notarial act, a notary is guilty of more than one contravention punishable with a fine (ammenda), he shall be awarded the higher or highest applicable punishment or, if they are all punishable with a similar fine, to
one such fine.
132. Any notary who -
(a) through negligence, fails to preserve the acts received by him as provided in this Act; or
(b) opposes the inspection referred to in article
115 or otherwise renders the same impossible; or
(c) is, for a second time, a recidivist in any of the contraventions mentioned in article 131(1)(a); or
(d) is a recidivist in any of the contraventions mentioned in article 131(1)(b),
Amendment of article 134 of the principal Act.
shall be liable to suspension for a period from one to six months.".
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"138. A notary shall be liable to be deprived of his office
Amendment of article 135 of the principal Act.
Substitution of article 138 of the principal Act.
if -
(a) he continues to practise during his suspension or temporary incapacitation, saving the provisions of article 131(3);
or
(b) he publishes a notarial act while he is partially incapacitated; or
(c) he has wilfully failed to preserve the acts received by him or the registers thereof or any other acts or the registers whereof
he is the keeper; saving any heavier punishment prescribed in the Criminal Code; or
(d) is, for a second time, a recidivist in any of the contraventions mentioned in 132(b).".
paragraph (g); and
(b) the following new paragraph shall be added immediately after paragraph (e) thereof:
"(f) provide guidelines on the manner in which any of the provisions of articles 94A and 94B is to be interpreted or applied,
so however that such interpretation or application shall not be in conflict with the provisions of this Act or of any regulations
made thereunder;".
(a) in article 205 thereof, for the words "article 66" there shall be substituted the words "article 68";
Repeal of articles 147 to
151 of the principal Act.
Amendment of article 152 of the principal Act.
Amendment of the Civil Code. Cap. 16.
C 600
(b) article 242 thereof shall be amended as follows:
(i) in subarticle (2) thereof for the words "one of the Visitors of Notarial Acts" there shall be substituted the words
"the retired Judge or retired Magistrate or retired advocate of the Court of Revision of Notarial Acts";
(b) in subarticle (3) thereof for the words "one of the said Visitors" there shall be substituted the words "the
said retired Judge or retired Magistrate or retired advocate";
(c) in subarticle (1) of article 253 thereof for the words "one of the Visitors of Notarial Acts" there shall be substituted
the words "the retired Judge or retired Magistrate or retired advocate of the Court of Revision of Notarial Acts";
(d) article 257 thereof shall be amended as follows:
(i) in subarticle (1) thereof for the words "one of the Visitors of Notarial Acts" there shall be substituted the words
"the retired Judge or retired Magistrate or retired advocate of the Court of Revision of Notarial Acts";
(ii) in subarticle (4) thereof for the word "Visitor" there shall be substituted the words "the said retired Judge
or retired Magistrate or retired advocate";
(iii) in subarticle (5) thereof for the word "Visitors" there shall be substituted the words "the
aforesaid retired Judge or retired Magistrate or retired advocate";
(iv) in subarticle (8) thereof for the word "Visitor" there shall be substituted the words "retired Judge
or retired Magistrate or retired advocate";
(v) in subarticle (9) thereof for the word "Visitor" there shall be substituted the words "retired Judge
or retired Magistrate or retired advocate as aforesaid";
(e) in paragraph (a) of subarticle (2) of article 280 thereof for the words "one of the Visitors of notarial acts"
there shall be substituted the words "the retired Judge or retired Magistrate or retired advocate of the Court of Revision of
Notarial Acts";
(f) article 281 thereof shall be amended as follows:
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(i) in subarticles (1) and (2) thereof for the words "one of the Visitors of notarial acts" there shall be substituted
the words "the retired Judge or retired Magistrate or retired advocate of the Court of Revision of Notarial Acts";
(ii) in subarticle (3) thereof, for the word "Visitor" there shall be substituted the words "retired
Judge or retired Magistrate or retired advocate";
(g) in article 286 thereof for the words "one of the Visitors of notarial acts" there shall be substituted
the words "the retired Judge or retired Magistrate or retired advocate of the Court of Revision of Notarial Acts"; and
(h) article 610 thereof shall be substituted by the following:
"610. Nor can the notary by whom a public will has been received, or the person by whom a secret will has been written out,
benefit in any way by any such will.".
(a) subarticle (3) of article 11 thereof shall be repealed; (b) in subarticle (1) of article 36 thereof, for the words
"One of the Visitors" there shall be substituted the words "The retired Judge or retired Magistrate or retired advocate
of the Court of Revision"; and
(c) in article 37 thereof, for the words "the Visitor" there shall be substituted the words "the retired
Judge or retired Magistrate or retired advocate".
(a) in article 3 thereof:
(i) subarticle (4) thereof shall be deleted;
(ii) subarticle (5) thereof shall be renumbered as subarticle (4);
(b) subarticle (1) of article 6 thereof shall be amended as follows:
(i) for the words "as well as the magistrates"
Amendment of the Public Registry Act. Cap. 56.
Amendment of the Commissioners for Oaths Ordinance.
Cap. 79.
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there shall be substituted the words "as well as the magistrates and the notaries"; and
(ii) immediately after subarticle (1) thereof there shall be added the following new proviso:
Amendment of the Duty on Documents and Transfers Act. Cap. 364.
"Provided that a notary may at any time by notice in writing to the Attorney General resign his office as Commissioner for Oaths, and such resignation shall be published in the Gazette.".
Transfers Act shall be substituted by the following:
"(4) The examination of notarial acts shall be carried out by the Court of Revision of Notarial Acts which shall make a
report to the Commissioner of any offence against this Act which may come to its notice during such examination:
Provided that such court may delegate the Chief Notary to Government to examine in its name any wills, and it may delegate
a review officer appointed in terms of article
Cap. 55.
94A of the Notarial Profession and Notarial Archives Act to examine in its name any other notarial act to the exclusion of those published
in terms of Part IIIA of the said Act:
Provided further that the provisions of this subarticle shall not preclude any officer as is referred to in subarticle (1) from
inspecting inter vivos acts (to the exclusion of those published in terms of Part IIIA of the said Act) at the premises or elsewhere of a notary for the
purpose of ascertaining compliance with this Act.".
The main object of the Bill is to update the law relating to the notarial profession by providing as many safeguards as possible for
the public who use the services of a notary. The Notarial Council is being given, together with the Court of Revision of Notarial
Acts, a pivotal role in the collection of notarial acts, their review, inspection and deposit in the Notarial Archives. The Council
will have various
C 603
self-regulatory powers over members of the profession. The Bill introduces precautionary measures to ensure that a notary who does
not preserve notarial acts in terms of law, and fails to comply within a reasonable time, be partially incapacitated from the exercise
of his functions and, should he persist, be deprived of his office. The Bill further protects the public interest by minimizing the
possibility of notarial acts being null or annulable solely on formal grounds, and by introducing compulsory professional indemnity
cover for notaries. Following some recent judgements, the Bill clarifies and regulates certain powers of notaries which are not specifically
mentioned in the Act.
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