ACT No. LI of 2021 AN ACT to amend the Notarial Profession and Notarial Archives Act, Cap. 55.

I assent.

(L.S.)

GEORGE VELLA

President

27th July, 2021

ACT No. LI of 2021

AN ACT to amend the Notarial Profession and Notarial Archives

Act, Cap. 55.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by authority of the same, as follows:-

The short title of this Act is the Notarial Profession and Short title.

Notarial Archives (Amendment) Act, 2021, and this Act shall be read

and construed as one with the Notarial Profession and Notarial Cap. 55.

Archives Act, hereinafter referred to as "the principal Act".

Immediately after sub-article (4) of article 2 of the principal Amendment of

article 2 of the

Act, there shall be added the following new sub-article

principal Act.

"(5) Notaries are empowered to give advice on any of the

functions and powers vested in them in terms of the provision of

this article, and on any matter or competence attributed to them,

whether exclusively or otherwise, under any law or regulation,

and in general, on anything relating to the proper discharge of

their obligations or engagement, and this notwithstanding

anything that may be stipulated under any other law.".

Sub-article (2) of article 3 of the principal Act shall be

substituted by the following

"(2) Saving the provisions of articles 14 and 22 in so far

as they relate to the offices of the Chief Notary to Government,

Notary to Government, Notary Public with the Lands Authority

or Notary Public with the Housing Authority, under the

provisions of article 22(5), or Notary Public with any other

Government Authority or Agency, no person holding an office of

profit with the Government, except the Office of Director or

Assistant Director of the Public Registry or the Land Registrar or

Assistant Land Registrar, may practice as a notary

Provided that the Director or the Assistant Director of

Public Registry and the Land Registrar or Assistant Land Registrar

may not exercise the notarial profession except in the capacity of

Chief Notary to Government or Notary to Government.".

In sub-article (1) of article 8 of the principal Act, immediately

after the words "each year" there shall be added the words "or at such

other date during that year as the Board referred to in article 7 may,

after due deliberation, deem necessary to establish".

Article 11 of the principal Act shall be amended as follows

(a) sub-article (1) thereof shall be substituted by the

following

"(1) The notary may refuse his services or terminate

any engagement for his services at his discretion without

justification, and will not be required to consider the effect

or consequence of such refusal.";

(b) sub-article (2) thereof shall be substituted by the

following

"(2) Without prejudice to the generality of the

foregoing sub-article, the notary shall not be bound to give

his services or to finalise any engagement, if subsequent to

the acceptance of the engagement

(a) the parties fail to deposit with him the

amount of duties, taxes, fees and expenses in respect

of any service or deed, either at the moment of

publication of the deed or on the execution of the

service requested; or

(b)

his services are required on a public

holiday or between 9.00 p.m. of one day and 8.00

a.m. of the following day.";

(c) sub-article (3) thereof shall be substituted by the

following

"(3) The provisions of sub-article (1) and (2),

shall not apply in the case of a will and the provision

of paragraph (b) of sub-article (2) shall not apply in

the case of a sea protest.".

Article 14 of the principal Act shall be amended as follows

Amendment of

article 14 of the

principal Act.

(a)

in sub-article (1) thereof

(i) the words "A notary -" shall be substituted by

the words "A notary shall cease from exercising his

functions:";

(ii) paragraph (a) thereof, shall be substituted by

the following

"(a) if he accepts a government employment,

or is in full-time employment, or else if he exercises

a profession or assumes any office incompatible with

the office of notary

Provided that a notary who accepts an

appointment to act as Chief Notary to Government or

Notary to Government or Notary employed with any

Government Ministry or Department or Notary

Public with the Lands Authority or Notary Public

with the Housing Authority, under the provisions of

article 22(5), or Notary Public with any other

Government Authority or Agency, for a continuous

period not exceeding three months, may continue to

exercise his functions as a Notary Public.";

(iii) paragraph (b) thereof shall be substituted by the

following

"(b) if he is permanently absent from Malta

for a continuous period exceeding five years or fails

to publish any act for a period of seven consecutive

years preceding the current basis year of review, to be

ascertained annually, from the basis year of review

2021. The assigned Review Officer shall ascertain

this fact during the period of review, and shall upon

request, be given any relevant information by the

notary himself or the Office of the Notary to

Government or the Notarial Council. The review

officer, shall, by application, report the matter to the

Court of Revision of Notarial Acts and the Court

shall, if satisfied that the facts subsist, decree that the

said notary has ceased to exercise his functions and

shall order the notary to bind and consign any

original acts still in his possession to the Review

Officer within a time so established in its decree,

failing which the penalties under article 94A(18)(a)

shall apply mutatis mutandis, and the said Court shall

appoint a Notary Keeper, where it deems expedient to

do so. The Court shall cause the said decree to be

served on the notary, at the address registered with

the Notarial Council, or if residing abroad, by

electronic mail to the last electronic address

registered with the Notarial Council, on the Attorney

General, the Chief Notary to Government and the

President of the Notarial Council, and the mentioned

decree shall be published in the Gazette. Subsequent

to this publication, the Chief Notary to Government

shall cause the name of the said notary to be listed

with the names of notaries not exercising their

functions, which list shall be kept by the Chief

Notary to Government and published in the same

manner as the list under article 4.";

(iv) in paragraph (c) thereof, the words

"permanently loses his warrant as Notary" shall be deleted;

(v) in paragraph (d) thereof, the words

"permanently loses his warrant as Notary" shall be deleted;

(vi) in paragraph (e) thereof, the words

"permanently loses his warrant as Notary" shall be deleted;

(vii) in paragraph (f) thereof, the words

"permanently loses his warrant as Notary" shall be deleted;

(viii) in paragraph (g) thereof, the words "shall cease

from exercising his functions" shall be deleted.;

(ix) in paragraph (h) thereof, the words "cease from

exercising his functions", shall be deleted and the words

"assume his warrant" shall be substituted by the words "be

rehabilitated";

(b) in sub-article (2) thereof, the words "upon sitting for

the qualifying examination referred to in article 6(1)(f)." shall be

substituted by the words "upon the advice of the Board referred

to in article 7 which shall ascertain that the notary is adequately

proficient, up-to-date and qualified to resume the exercise of all

the powers and functions of a Notary Public.";

(c) sub-article (3) thereof, shall be substituted by the

following

"(3) The notary who accepts the office of Chief

Notary to Government, Notary to Government, Notary in

full-time employment with a Government Ministry or

Department or Authority, Notary Public with the Lands

Authority, Notary Public with the Housing Authority, the

office of Director or Assistant Director of the Public

Registry or Land Registrar or Assistant Land Registrar, or

a notary who is in full-time employment with a commercial

lending bank or similar financial institution or entity, or

with any Government agency or limited liability company

or any other entity, where the Government of Malta is

either the beneficial owner or has a controlling interest

therein, or in any other case where any notary continues to

carry out, in the regular exercise of his office or

employment, any one of the powers and functions listed in

article 2, shall not during the tenure of such office or

employment, cease from the exercise of the functions of

notary

Provided that, any notary falling within the

scope of this sub-article may not practise as a notary except

in the capacity as stated in this sub-article, and shall not

therefore, during the tenure of such office, cease from the

exercise of the functions of notary, but only in so far as

such functions relate to the execution and custody of deeds

to which the Government or any corporate body

established by law is a party, and the issue of copies or

extracts from such deeds.";

(d) immediately after sub-article (3) thereof, there shall

be added the following new sub-articles

"(4) In any case where a notary ceases to exercise

his functions in terms of this sub-article, the Court shall

decree that the said notary has ceased to exercise his

functions and shall order the notary to bind and consign

any original acts still in his possession to the Review

Officer assigned to him for the current year of review,

within a time so established in its decree, failing which, the

penalties under article 94A(18)(a) shall apply mutatis

mutandis. The Court shall also appoint a Notary Keeper.

The Court shall cause the said decree to be served on the

notary, on the Attorney General, the Chief Notary to

Government and the President of the Notarial Council and

the said decree shall be published in the Government

Gazette in the manner established in paragraph (b).

(5) Subsequently to this publication, the Chief

Notary to Government shall cause the name of the said

notary to be listed with the names of notaries not

exercising their function, which list shall be kept by the

Chief Notary to Government and published in the same

manner as the list under article 4.".

Sub-article (3) of article 25 of the principal Act shall be

substituted by the following

"(3) The presence of two (2) witnesses shall be required

only in the following cases

(a)

whenever any of the appearers so requests; and

(b) whenever any of the appearers does not know

how or is unable to sign his name

Provided that in the case of public wills and in the

case of acts of delivery of secret wills, the notary shall in all

cases inform and explain to the testator about the testator’s right

to have two (2) witnesses present

Provided further that in the case of public wills if the

testator chooses not to have two (2) witnesses present, the notary

shall in the will declare that he has informed and explained to the

testator about his right to have two (2) witnesses present and that

the testator chose not to have two (2) witnesses present

Provided further that in case of acts of delivery of

secret wills if the testator chooses not to have two (2) witnesses

present, the notary shall in the act of delivery declare that he has

informed and explained to the testator about the testator’s right to

have two (2) witnesses present and that the testator chose not to

have two (2) witnesses present.".

Sub-article (1) of article 50 of the principal Act shall be

amended as follows

(a) paragraph (n) thereof shall be substituted by the

following

"(n) any notarial corrective act, any subsequent

corrective act and any act of rebuttal in terms of article

45A;";

(b) paragraph (o) thereof shall be substituted by the

following

"(o) any act to renounce to an inheritance;";

(c) paragraph (p) thereof shall be substituted by the

following

"(p) any application for a European Certificate of

Succession and every issued European Certificate of

Succession."; and

(d)

paragraph (q) thereof shall be deleted.

Sub-article (1) of article 152 of the principal Act shall be Amendment of

article 152 of

amended as follows

the principal

Act.

(a) in paragraph (c) thereof, immediately after the words

"by microfilming" there shall be added the words "and by any

other form of digitisation";

(b) in paragraph (d) thereof, immediately after the words

"by microfilming" there shall be added the words "and by any

other form of digitisation".

Passed by the House of Representatives at Sitting No. 489 of the

14th July, 2021.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€0.90