ENTAILED PROPERTY (DISENTAILMENT) ACT * (disentailment)

ENTAILED PROPERTY (DISENTAILMENT)

CHAPTER 130

ENTAILED PROPERTY (DISENTAILMENT) ACT *

To provide for the disentailment of property held in tail.

(5th May, 1950) †

Enacted by ACT XII of 1950, as amended by Legal Notice 148 of 1975.

This Act may be cited as the Entailed Property

(Disentailment) Act.

In this Act, unless the context otherwise requires -

"holder" means the person who on the material date is the lawful

holder in tail of things subject to a fideicommissum;

"material date" means the date of coming into force of this Act;

"movables", notwithstanding any other law to the contrary,

includes perpetual annuities in general and, without prejudice to

that generality, capitals for annuities ad formam bullae and credits

in respect of interest accruing from monies formerly invested in the

Massa Frumentaria , and "immovables" shall be construed

accordingly;

"successor" means the person who, in accordance with the deed

of foundation of a fideicommissum, would enter into the enjoyment

of the immovables subject to that fideicommissum, with effect from

the decease of the holder thereof.

As from the material date all fideicommissa of whatsoever

nature on movables and immovables, created at any time, whether

they be perpetual or temporary, shall be revoked and the property

theretofore affected thereby shall be held free from fetters by the

holder of such movables and immovables, subject, however, to

such burdens, hypothecs duly authorized and liabilities as affected

the fettered property

Provided that -

(a) in the case of the indivisible fideicommissa on

immovables, the immovables so disentailed shall vest

in ownership free from fetters in the holder thereof as

to one moiety only, subject to one moiety of the

burdens, hypothecs duly authorized and liabilities

which affected those immovables on the material date,

while the remaining moiety of the immovables so

disentailed and subject to the remaining moiety of the

aforesaid burdens, hypothecs and liabilities, shall vest

free from fetters in the successor (whether or not on

the material date the successor be alive) in respect of

the ownership subject to the enjoyment thereof for life

of the holder. Sub-title 1 of Title III of Part I of Book

Second of the Civil Code shall apply to the enjoyments

*See also the Disentailment of Property (Extension to fiefs) Act (Chapter 212).

†See Government Notice No.234 of 9th May, 1950.

ENTAILED PROPERTY (DISENTAILMENT)

for life thus established but articles 331, 350, 351,

articles from 354 to 362 both inclusive and article

352(3) thereof shall not be applicable. Articles 352(1)

and (2) of the said Civil Code shall not apply to the

said life enjoyment while owned by the holder but

shall apply in respect of an assignee of that life

enjoyment under article 340 of the said Civil Code;

(b) where property subject to any fideicommissum was,

while so subject, burdened by a hypothec on authority

granted by a competent court, any such hypothec shall

rank in relation to property freed from fetters in virtue

of this Act with priority over all other hypothecs;

(c) in the case of indivisible fideicommissa on

immovables under which the holder is endowed with

the right appointing a successor, the holder thereof

shall be entitled to exercise that right of appointment

in respect of the successor in that moiety of the

property of which, in virtue of this Act, the bare

ownership vests in the successor.

In any partition of immovable property subject to a

fideicommissum on the material date and in any act or deed

concerning immovable property the successor shall be represented

by a curator appointed for that purpose by the Second Hall of the

Civil Court or by any competent court. The application praying for

the appointment of a curator shall be specially notified to the

presumptive successor, if known and if in Malta at the time the

application is filed

Provided that the successor to the property subject to a

fideicomissum if known and in Malta shall always be a party to the

proceedings.

Any direction in the interest of persons called to succeed

under a fideicommissum given by any court on granting a

disentailment shall be deemed to be spent as from the material date

Provided that any such direction if and in so far as referable

to immovable property subject to an indivisible fideicommissum or

investment of monies in such immovables shall remain in force in

respect of the moiety of the immovables subject thereto of which in

accordance with the provisions of this Act the bare ownership

passes in terms of the deed of foundation until that passage takes

place.

No contract or other act inter vivos made or effected before

the material date may be annulled or varied by reason that it had for

its object things subject to a divisible fideicommissum.

(1) Any extension of the period otherwise necessary for

the completion of prescription, ordained by any law in respect

particularly of things subject to fideicommissum, is hereby declared

to be no longer applicable.

(2) The period requisite for the completion of any prescription

which has commenced to run previously to the material date, shall

ENTAILED PROPERTY (DISENTAILMENT)

be either that specified by the law obtaining previously to the

material date or that applicable with effect from the material date in

accordance with subarticle (1), whichever application of law will

lead to the earlier completion of the prescription.

This Act shall not apply to rights of advowson or to any

form of jus patronatus in ecclesiastical benefices, or to rights,

temporary or perpetual, created either by a deed inter vivos or by a

testament, whereby one or more persons are appointed to exercise

or to enjoy those rights successively, and the laws now in force

concerning any such rights are maintained in respect of them.

* 9.

Nothing in this Act shall affect the provisions contained in

article 761(2) of the Civil Code.

All orders and decrees authorizing the sale of entailed

property pending on the material date shall lapse, and the property

becomes free on such date and this without prejudice to article 5 of

this Act.

*This article has been re-numbered in consequence of the omission of the original

article 9. That article provided for an exemption from the Succession and Donation

Duties Ordinance which was repealed by the Death and Donation Duty Act (Chapter

239). The latter law made different provision and the matter was regulated by the

proviso to paragraph (b) of subarticle (4) of article 13 of that Chapter. That chapter

was repealed by the Duty on Documents and Transfers Act (Chapter 364).