Court annuls affidavit obtained by fraud

A court in Gozo has taken the unusual step of declaring a notarial document invalid, due to it not being morally convinced of the free will of the person making it.

Giuseppe Mizzi had, in a previous case, requested a court to annul a contract of sale between Martin Debrincat and himself as he claimed he had never agreed to the sale, let alone signed the contract.

Mizzi passed away in 2009, while this case was still being heard.

In his will, made a year prior, Mizzi had named Michael, Sina and Jacob Mizzi as his universal heirs. 

Martin Debrincat contested the will in 2009, exhibiting an affidavit allegedly made by the deceased, wherein it was declared that he wished to drop the case he had instituted against Debrincat. 

The heirs claimed the affidavit was invalid as it was obtained by fraud and that, although the affidavit was sworn before a notary and in the presence of a doctor who had confirmed that the Giuseppe Mizzi was fully aware and mentally capable of knowing what he was doing, it was impossible for Mizzi to have dictated the affidavit on his deathbed.

During the hearing of the case, it the court heard how Notary Silvio Hili and medical doctor Michael Refalo were approached by Debrincat, who told them that Mizzi wanted to cede the case against him by means of an affidavit.

The notary collected all the information necessary to draft the document from Debrincat and visited Mizzi in hospital together with the doctor. 

In its judgment, the court noted how the doctor had already prepared the form required for the declaration of the good state of mental health of the patient. After the doctor reminded Mizzi of the case against Debrincat, he asked him if he wished to continue with the case, to which Mizzi replied “no” and whether he wished to sign a declaration to this effect, to which he replied “yes”.

The court also noted that the affidavit was presented to Mizzi when he was in hospital, suffering from a high fever and that it was debatable whether a person in Mizzi’s state was sufficiently in control of his mental faculties to make an affidavit. 

It described as “very strange” the fact that the doctor was allowed to remind Mizzi of the lawsuit between him and Debrincat and ask him whether he wished to cede it, when his actual task was to ascertain whether the patient was of sufficiently sound mind to swear the affidavit.

It held that a person in Mizzi’s state could not be expected to remember the details of the case and that the only words that came directly from Mizzi were “no” and “yes”.

The court further noted that only ten days prior, Mizzi had made his last will and testament where he had nominated the plaintiffs as his universal heirs and had explicitly declared in it that he wished the case against Debrincat be continued.

It recalled Mizzi’s testimony in the case allegedly ceded where he was adamant that he wanted to recover his assets from Debrincat.

In his judgment, Magistrate Paul Coppini held that the will was to stand as, in his opinion, fraudulent devices led to the signature on the affidavit and that therefore the document did not reflect the will of the person signing it.