Heirs block testamentary executor

The 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. 

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Malcolm Mifsud
20 February 2015, 8:00am
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

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Malcolm Mifsud is a partner at Mifsud & Associates.