Legatee must make a request to curator in case of a vacant inheritance to gain possession of the property

The Court concluded that the plaintiff was to take possession of the half undivided share of the property of the late Ms Buhagiar, following the publication of the relevant public act needed in virtue of Article 763

In the case of a vacant inheritance, meaning where there is no heir, then the claim must be made by the legatee against the curator for the granting of possession of the property, since it is the curator that has legitimate possession of the property in such cases.

This was held by the First Hall Civil Court on the 8th of October 2019 by Hon. Judge Grazio Mercieca in the case of Mallia Louise vs Dr Phyllis Aquilina who through a Court decree was nominated as the curator of the vacant inheritance of Antonia Buhagiar.

The Court heard the claims by the plaintiff, who wanted to gain possession of the property which her second cousin Antonia Buhagiar left her under the title of legacy.

The late Ms Buhagiar did not institute anyone as universal heir, and her only disposition was in favour of the plaintiff, who took care of her in her old age. Ms Buhagiar died unmarried, had no children and her parents and siblings had died, whilst her nephews and nieces had renounced to the inheritance.

In 2015, Dr Phyllis Aquilina was appointed curator of the vacant inheritance. Through her searches, Dr Aquilina had found that only half of the share of the property in question had been passed on to Ms Buhagiar through a sale by auction by which she bought the property in 1989.

The plaintiff held that she was exercising the action against the curator due to the procedure expounded in Article 726 of the Civil Code which states that “the legatee must demand of the heir possession of the thing bequeathed” and goes on to say that “the case of immovable property the legatee may demand the grant of such possession be made by means of a public deed.”  

The Court held that the plaintiff correctly instituted the action for possession against the curator because it is a well-founded principle in our law that until the legatee receives a release from the heir, then possession cannot be given.

The Court held that until this permission is granted, although the legatee is a proprietor, this right is only abstract, and subject to contestation by the heirs.

The Court then explored the position of the legatee under Italian law and stated that it is clearly explained in Italian law that upon the death of the testator, the right to the property is indeed transmitted to the legatee.

The legatee must, however, ask the heirs for possession of the thing, even when he has been expressly dispensed by the testator. In cases of a vacant inheritance, the curator, although not having material possession of the property, has legitimate possession and so must accept that the possession is enjoyed by the legatee.  

The Court quoted the judgement Wismayer vs Wismayer (1946) wherein the Civil Court confirmed that the request for possession should be made to the heirs, as those having the legitimate possession, even if they don’t have material possession, and this in confirmity with Article 763. The curator steps into the shoes of the heir and therefore gains legitimate possession of the property and is entitled to make those decisions.

The Court concluded that the plaintiff was to take possession of the half undivided share of the property of the late Ms Buhagiar, following the publication of the relevant public act needed in virtue of Article 763. All expenses, both of the proceedings as well as those related to the publication of the public act, are to be paid by the plaintiff.

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