Issue link: https://maltatoday.uberflip.com/i/546399
52 maltatoday, SUNDAY, 26 JULY 2015 Opinion T he First Hall Civil Court, presided over by the Hon. Madame Justice Lorraine Schembri Orland, in a judgment on 9 July 2015, ordered the defendant to pay the sum of €152,308 representing the reserved portion owed to the plaintiff after the death of her father. Dr Malcolm Mifsud, on behalf of the absent Jacqueline Purchase, instituted a case against Jason Micallef and asked the Court to liquidate the assets of the deceased Edward Grixti, liquidate the reserved portion due to the plaintiff and condemn the defendant to assign the sum liquidated. The case concerned a dispute on the reserved portion between the daughter of the deceased, Edward Grixti, and the universal heir Jason Micallef, who claimed to be the natural son of Edward Grixti. The Court in its judgment made reference to Article 615 of Chapter 16 of the Laws of Malta which holds that, "The reserved portion is the right on the estate of the deceased reserved by law in favour of the descendants and the surviving spouse of the deceased." This case dealt with a particular situation wherein there was a dispute on the number of descendants of the deceased and on whether the reserved portion could be compensated with immovable property rather than with cash. The Court held that in this case, the reserved portion is one third of the value of the assets of the deceased since the children, in any case, do not exceed four. Additionally the Civil Code states that the reserved portion should be divided in equal shares amongst the children who participate in it and where there is only one child, he shall receive the whole of the aforesaid third part. During the production of evidence the Court noted that the deceased, the father of the plaintiff, by means of his last will nominated as his universal heir the defendant Jason Micallef. In the same will the testator also disinherited his adoptive son. Jacqueline Purchase, whilst giving evidence, stated that legal proceedings had been instituted with regards to her mother's succession and the property of the community of acquests was valued at €1,038,425. The Plaintiff also noted that the allegation of the defendant that he is the natural son of the testator is unfounded since no act of recognition was made. Furthermore the plaintiff pointed out that the will itself always referred to the defendant as the son of Mary Micallef and not his son. The defendant, on the other hand, stated that he has no objection for the plaintiff to be paid a sum representing the reserved portion. However he stated that such portion should consist of €51,325 and not the sum of €152,308. This argument was being made on the basis that he claimed to be the natural son of the testator. He also insisted that the reserved portion should be paid in cash and not by transferring, on to the plaintiff, any immovable property forming part of the estate of the deceased. The plaintiff did not agree with the defendant and stated that since the adoptive son was disinherited, the sum due as reserved portion should be €153,975 since she would be the only descendant benefiting from the reserved portion. The plaintiff also stated that that the property known as "Jacqueline House" should form part of the credit owed to her as the assets of the deceased consisted only in immovable property. In this regard the Hon. Madame Justice Lorraine Schembri Orland noted that radical changes were made in the law of succession in 2004 in such a way that the reserved portion is now considered to be a right of credit against the heirs and not against the assets of the deceased. In this regard, the Court concluded that the plaintiff does not have a right to request the property of the deceased to form part of the reserved portion. The plaintiff has the right to claim the credit, in cash, and the interest from the heir of the deceased. The Court went on to decide what the share due to the plaintiff should be. In its considerations, the Court agreed with the plaintiff and affirmed that the defendant did not provide any evidence to support his claim that he is the natural son of the defendant. The only dispute remaining was whether the adoptive son had the right to receive a share from the reserved portion. In this regard the Court made reference to Article 618(2) of the Civil Code which holds, "Saving the provisions of articles 608 and 626 the portions of the children or other descendants who are incapable, or who have been disinherited, or have renounced their share, shall devolve in favour of the other children or descendants taking the reserved portion." Therefore the Court concluded that the plaintiff should benefit from the entire one-third share of the value of the inheritance since the testator disinherited the adoptive child. In conclusion, the Court decided by accepting the first, second and third request of the plaintiff and liquidated the sum of €152,308 as the reserved portion and condemned the defendant to pay the said sum to the plaintiff with legal interest from the date of the opening of succession. Dr Joseph Mizzi is a partner at Mifsud & Mifsud Advocates Joseph Mizzi mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application for the change of use "from an existing shop to a cateteria/bar" was approved by the Environment Planning Commission despite strong objections from a number of residents living in the same block. The approved plans show the introduction of a vertical chimneystack located in an internal shaft extending up to roof level. Following permit approval, the objectors lodged an appeal before the Environment and Planning Tribunal, insisting that they co-own the shaft and were not giving their consent to the introduction of a chimney in said shaft. In a strongly worded appeal, they also alleged that the applicant had initially submitted misleading drawings, following which he was requested to submit fresh drawings, which were not submitted within the stipulated time frame. The objectors went on to explain that the applicant has no direct access to the shaft in question, adding that "such a chimney is impossible to install, considering that third-party services need to be removed and/ or redirected in order to ensure a minimum distance of 300mm between the chimney and the third-party walls as per sanitary laws and regulations." On his part, the applicant contended that questions of ownership are of a civil nature and may not be debated before a planning tribunal. The case officer expressed a similar opinion, stating, "applicants are likewise never required to submit a Certificate of Ownership B in order to use a common shaft for the installation of foul water drainage pipes or any other services." In its assessment, the Tribunal dismissed the appeal and held that, in any case, the permit was issued subject to third-party civil rights. In its conclusions, the Tribunal observed that as a last resort, the applicant might always opt to use a different air extraction system. Following the Tribunal's decision, the objectors filed an appeal before the Civil Court of Appeal, making reference to Article 68(3) of Chapter 504, which expressly provides that "an applicant for development permission shall certify to the Authority that he is the owner of the site or that he has notified the owner of his intention to apply, by registered letter, of which a copy has been received by the Authority, and that the owner has granted his consent to such a proposal". In this case, the appellants explained that they were co-owners and had given no consent. The Court nonetheless held that Article 68 comes into play when a "title" is not under dispute. In this case, the Court observed that the parties (applicant and objectors) were both claiming a right with respect to the shaft under consideration. The Court thus reasoned out that the Tribunal was correct to steer away from such issue and confirm the permit, subject to third-party rights. Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in Law. robert@rmperiti.com Robert Musumeci MEPAwatch Court dismisses claims for revocation of permit to install a chimney The approved plans show the introduction of a vertical chimneystack located in an internal shaft extending up to roof level Court orders heir to pay the sum of €152,308 to the plaintiff as reserved portion