Issue link: https://maltatoday.uberflip.com/i/463339
32 maltatoday, SUNDAY, 15 FEBRUARY 2015 Opinion T he First Hall of the Civil Court on 9 February, 2015 upheld a request to block a testamentary executor from carrying out his duties in lieu of a pending court case against him. This was decided by Mr Justice Joseph Zammit McKeon in the case Danielle Mizzi and Joan Engerer -v- Hector Spiteri as testamentary executor of Edith Pace. The applicants asked the court to issue a warrant of prohibitory injunction against Mr Spiteri in order for him not to act as a testamentary executor of Edith Pace who died on 19 August, 2012, following a court action – Danielle Mizzi et -v- Erika Spiteri et ¬– which had been filed on 12 January, 2015. The parents of the applicants were Hannibal George and Edith Pace, both deceased, whose estate has not been divided. Hannibal George Pace died on 16 January, 2005. He had made two wills but did not appoint anybody as testamentary executors. When Edith Pace, whose succession is regulated by two wills, appointed two testamentary executors, only Spiteri accepted the appointment. Edith Pace's will mentioned her husband's share of the community of acquests without declaring them to be so and therefore the applicants asked the defendant not to take action. The Paces' estate consists of bank accounts, investments and moveable and immoveable property. The court case instituted is asking the court to order Spiteri not to liquidate the estate if not in accordance with the judgement. Hector Spiteri replied that the court has not confirmed him as executor and that if he acts as such, this will be under the control of all the heirs. Mr Justice Zammit McKeon examined the law of testamentary executor found in Article 762 et seq of the Civil Code where the executor has to be confirmed by the court of voluntary jurisdiction. Article 766 (1) reads: "The court shall not confirm the testamentary executor before he shall have entered into a recognizance in the records of the court, with hypothecation of his property to be registered in the Public Registry, faithfully to carry into effect the will of the testator, and to render an account of his administration every year", while Article 771 regulates on when the executor may sell the assets of the deceased: "(1) The testamentary executor, for the purpose of paying the debts of the estate or of discharging the legacies, may, in the absence or insufficiency of funds in the estate, collect sums owing to the estate, or, in default, sell property. (2) Such sale shall be made by public auction, unless the heirs agree, or the court, on the application of the executor, allows that the sale be made otherwise." The court examined the proceedings before the court of voluntary jurisdiction and that Spiteri filed an application for him to be confirmed as an executor, with Danielle Mizzi and Joan Engerer objecting to this. The court ordered Spiteri on 9 May, 2014 to compile an inventory of the property which he is charged with in terms of Article 767 of the Civil Code. However, its publication was not done due to the fact that not all the interested parties were notified with the decree. In January this year the court case was instituted. The court examined the elements of a warrant of prohibitory injunction as listed in Article 873 of the Code of Organisation and Civil Procedure, where a warrant will be issued if the applicant proves that he/she has a prima facie right and that the warrant will serve to protect that right and there exists a prejudice to the applicant if that right is not protected. Mr Justice Zammit McKeon held that the prima facie right is not subjective but objective and should not depend on the discretion of the judge as established in a previous judgement, Grech pro et noe -v- Manfre of 14 July, 1988. The court pointed out that Spiteri was as yet not confirmed by the court as an executor, subject to the publication of the inventory. Consequently the court commented that the court case precisely asks the court to block Spiteri from acting as a testamentary executor. According to Article 769 of the Civil Code, an executor still has powers of the inheritance, even if the court does not confirm his appointment. Due to the strong objection of the applicants it is clear that they have a prima facie right. The court held that the warrant procedure is a summary procedure and as a result should not enter into the merits of the case. The court agreed that the elements of the warrant exist and the defendants did not point out whether the applicants had an alternative remedy to that of issuing a warrant. The court then moved to uphold the request for a warrant of prohibitory injunction. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application for "internal and external alterations and addition of a garage" to a legally established dwelling in Misrah Frenc Abela, Dingli, was turned down by the Planning Commission but sanctioned by the Environment and Planning Tribunal. The commission held inter alia that the proposed garage opening is located at a distance which is less than four metres from the nearest corner as required by Policy 4.7 of DC 2007. The Commission also argued that the proposed development is incompatible with the urban design and environmental characteristics of the Urban Conservation Area, adding that the interventions would not maintain the visual integrity of the area as required by Structure Plan policy BEN 2. In conclusion, the Commission strangely highlighted that the proposal was in violation of Structure Plan policy AHF 5, in that the proposed development is not essential to the operation and/or management of a farm unit, and hence to the needs of agriculture. Following the decision, the applicant lodged an appeal before the Environment and Planning Tribunal, pointing out that Transport Malta had issued a "no objection" notwithstanding the fact that the design of the garage door ran counter to planning regulations – in this case, policy 4.7 of DC 2007. But even so, the applicant insisted that his property consists of a residence and any reference to farm policies which was made in the refusal report should be dismissed. In reaction, the case officer admitted that the refusal report should not have made any reference to any "farm policies" since the building subject of the application consists of a dwelling. In fact, the case officer observed that the third reason for refusal should have read as follows: "The proposed development would detract from the overall objectives of the Structure Plan for the preservation and enhancement of buildings, spaces and townscapes within Urban Conservation Areas and so does not comply with Structure Plan policy UCO6." But even so, the case officer reiterated that the distance between the proposed garage door and the nearest street corner/junction is equivalent to three metres, therefore running counter to the requirements of policy 4.7 of DC 2007 which essentially require a minimum four metre distance between doors and street junctions or corners. In its assessment, the Tribunal asserted that Transport Malta found no objection to the proposal and took note of the fact that the proposal would remove a nearby parking space which is currently constituting a traffic hazard. Against this background, the Tribunal ordered the Authority to issue the permit. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law Proposed garage would remove an on street parking space currently constituting a traffic risk Robert Musumeci MEPAwatch Garage approved following Transport Malta "no objection" Heirs block testamentary executor