Issue link: https://maltatoday.uberflip.com/i/228594
47 Opinion maltatoday, SUNDAY, 15 DECEMBER 2013 Death bed will may still be valid at law M agistrate Dr Josette Demicoli on 6 December 2013 decided that a will which was drawn up on the eve of the testator's death, changing the heirs was still valid at law. This was decided in her decision in the case Dr Rachel Loporto Montebello, as a special mandatory of Mary Rita, known as Maria Camilleri vs Dorothy Refalo and Salvina Farrugia. In a lawsuit instituted in the Gozo Magistrate's Court Maria Camilleri claimed that her aunt Cristina Vella had died on 8 October 2009. In a will of 4 July 2008 Ms Vella had nominated Maria Camilleri and other members of her family as one of the heirs. However, after Cristina Vella's death, she learnt that on 7 October 2009, her aunt had made another will, drafted by Notary Dr Paul George Pisani, where she was unconscious. The will removed all the family members as heirs and left only the defendants, Dorothy Refalo and Salvina Farrugia. Ms Camilleri asked the court to annul this last will, since she did not possess the mental capacity of consenting to a will and/or was tricked into making this last will. The defendants pleaded that this was not the case since, at the time Malcolm Mifsud mmifsud@mifsudadvocates.com.mt when she was making this will she was in her full mental capacity. The Court examined the facts of the case and saw that ms Vella died on 8 October 2009, at the age of 80 years old from complication of diabetes. Vella lived with the defendant Salvina Farrugia for around 50 years. On 7 October 2009, changed her will leaving all her immovable and movable property to the two defendants. There was a medical certificate annexed to the new will. The Notary declared that Vella did not sign the will. Hours after the will, Vella was taken to hospital and died the following morning. Magistrate Demicoli examined the relevant legislation, as article 655(1) of the Civil Code which stipulates A person can dispose of his or her property at he or she deems fit that a notary much receive and publish a will, which has to be made before two witnesses. Article 597 of the same Code states that the will has to be voluntary and the testator must be legally capable and persons who are interdicted or not conscious cannot make a will. The court also examined the prevailing legal principles that apply to this case, the first being that there is a legal presumption that the testator is capable of making a will, because being incapable is an exception not the rule. Furthermore, the fact that a person is legally capable of making a will does not mean that that person is perfectly and rigorously of sound mind. It would be sufficient that the testator know what is taking place. Another principle is that it has to be proved that the testator is incapable for the will to be declared null. The plaintiff would have to give strong evidence on this and not show a mere possibility. The evidence must be in the form of précis facts at the time when the will is made. Any doubt has to be in favour of the validity of the will. With regard to the issue of whether Vella was pressured into making the will, it has to be proved that the testator would not have made the will, if the pressure would have not been made. It is not sufficient that the testator simply gave into the wishes of another person or else pleased that person by making another will. A person can dispose of his or her property at he or she deems fit. Magistrate Demicoli held that there were two opposing versions of events, which is not uncommon. The Court commented that the doctor's and notary's evidence were critical. Both confirmed that at the time when Ms Vella made her will she was conscious and she could communicate. Dr Josette Rapa testified that Cristina Vella was referred to hospital on 7 October 2009 by Dr Peter Muscat, due to her deterioration of her general condition and it was evident that she was dying. Notary Pisano told the court that Dorothy Refalo asked him to go to Ms Vella in Sannat, Gozo. She was in bed and spoke in a low voice. To him, she know what was going on and gave him specific instructions that she wanted the defendants to have everything. He asked her if she wanted to leave anything to someone else and she replied in the negative. Dr Peter Muscat testified that he visited her daily and on the 7 October he went to her for the first time as a normal routine. He could communicate with her and told him that she was waiting for the notary. He confirmed his certificate. After analysing other witnesses, the Court concluded that it was convinced that although Vella was physically tired and she could not speak for long, during the time she was making her will she understood what was happening and as a result the plaintiff claims were turned down. Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates A snack bar can be accommodated in an industrial area A 2009 planning application 'to sanction the change of use from a car showroom to a Class 6 snack bar' was turned down by the Environment and Planning Commission on a number of planning grounds. As a preliminary point, the Commission noted that the Central Malta Local Plan designates this particular area as an SME (Small Medium Enterprise) site. SMEs are subject to Policy QO08 of the said Local plan, which in turn excludes Class 6 operations in such areas. On this basis, the Commission maintained that the snack bar cannot be sanctioned as requested. In addition, the Commission held that the proposal amounts to the potential loss of industrial space, thus in conflict with Policy 14.6 of the Policy and Design Guidance (2007) which expressly states that "in areas zoned for industrial development, MEPA will not grant permission for the change of use to non industrial use." In conclusion, the Commission observed that the fire safety and ventilation report (that was submitted by applicant during Applicant contended that the Pavi supermarket Robert occupies 4 tumoli of Musumeci designated industrial land MEPAwatch the application process) was not according to acknowledged standards as no indication of the benchmarks or standards were included. The proposal was also deemed objectionable from a transport point of view since the premises are located in a corner. In reaction, applicant submitted an appeal before the Environment and Planning Trubunal, maintaining that Class 6 (a) use is in effect allowed by virtue of Policy CG 15 of the Local Plan. Concurrently, applicant made specific reference to the PAVI supermarket which was granted a planning permit notwithstanding it being lcated within a designated industrial zone. In fact, applicant contended that the Pavi supermarket, which occupies 4 tumoli of designated industrial land, incorporates also a restaurant measuring an area of 500 square metres. Applicant proceeded by making refernce to several other permits where class 6 use was expressly permitted within industrial zones. (The permits quoted refer to Mriehel and TalHandaq area). For its part, the Tribunal observed that the premises were of a limited size (40 square metres), adding that the likelihood of accomodating industrial operations within such a restricted space was far too remote. More so, the Tribunal held that no adverse traffic impact was envisaged since the area is already committed with heavy industrial activity. Against this background, the Tribunal approved the permit subject to the conditions attached in the fire safety and ventilation report. robert.musumeci@rmperiti.com