A court must rule on divisibility before licitation

The Court of Appeal (Superior Jurisdiction) held on 30 April 2026 that a court asked to divide an inheritance must first decide whether the property can be divided in kind. It cannot order a sale by licitation and leave that question to the architect who values the property. In the same judgment the court recalculated a reserved portion and restored interest at 8%.

The facts

B.S. vs S.M. was a dispute between two sisters over the estates of their parents, who died in 2003 and 2011. Both parents left wills naming their three children heirs in equal shares, with legacies to each.

The plaintiff and her brother renounced their mother's inheritance but kept their right to the reserved portion, the share of an estate the law keeps for children and a surviving spouse. In 2012 they sued their sister in the First Hall of the Civil Court for the division of their father's estate and payment of the reserved portion from their mother's.

On 17 October 2024 the First Hall ordered all the father's property sold by licitation, a court-run sale among the co-owners with outside bidders admitted. It told the architect to stop the sale if he found the property conveniently divisible. It ordered the defendant to pay her sister €115,091.35 with interest at 5%. Both sisters appealed.

What the court held

Chief Justice Mark Chetcuti, Mr Justice Christian Falzon Scerri and Madam Justice Josette Demicoli started from article 496 of the Civil Code (Chapter 16 of the Laws of Malta): no one can be forced to remain a co-owner. Article 502 gives each co-owner the right to take a share in kind.

A sale by licitation is therefore an exceptional remedy. The court held that it can be ordered only on positive proof that the property cannot be divided conveniently and without harm. The First Hall gave no reasons on that point, and its own order showed it had not ruled out a division.

Leaving the question to the architect also denied the parties a hearing. At that stage, the court said, “il-partijiet la jistgħu jeskutu lill-perit, u lanqas ma sejrin ikunu jistgħu jitolbu l-ħatra ta’ periti addizzjonali” (the parties can neither examine the architect nor ask for additional architects).

The court annulled the order for sale and sent the case back. It chose not to decide divisibility itself, so that the parties keep a right of appeal on that question and on any plan of division.

On the reserved portion, the mother held only half the sub-directum dominium, a right to ground rent, over three properties. The architect had valued them as if held freehold. The court capitalised her half of the LM80 annual ground rent at 20 years, giving €1,863.50 for each property.

That brought the mother's estate down to €924,812.44. Under article 616(1) three children share one-third of the estate, so the plaintiff's portion is one-ninth: €102,756.94.

The court refused to deduct a donation the plaintiff had received. The parents' will exempted all their children from collation, and the court held the clause wide enough to cover a child who renounces and claims the reserved portion. It also removed a deduction of €8,433.64, because the defendant had raised no plea on it.

Finally, the proviso to article 615(2), added by Act XV of 2012, lets a court lower or refuse interest on a reserved portion. The court held that it does not apply to a claim made by a judicial act filed before it came into force. Interest therefore runs at the 8% rate set in article 1139.

Why it matters

A party who wants property divided in kind should press the first-instance court to rule on divisibility, with a court-appointed architect if needed, before any licitation. A reserved portion demanded by judicial act before the 2012 amendment carries 8% interest that the court cannot reduce. A share of a directum dominium is valued by capitalising its ground rent, not at the value of the property.

Where it sits

The case applies the rule students meet in the law of co-ownership: division in kind comes first and licitation last. The court cited the First Hall of the Civil Court (30 June 2005) for the right to a share in kind. For licitation as the exception it cited the Court of Appeal (17 March 2021 and 15 June 2023) and Simplex Limited et v. Lux Limited et (Court of Appeal, 29 March 2023).

On a court's duty to decide on the evidence it has, it cited the Court of Appeal (15 November 2023). On interest, it followed a second Court of Appeal judgment of the same date and the First Hall (5 May 2023, 31 October 2019 and 27 April 2017), which hold that the 2012 proviso does not reach earlier claims.

Since Act XVIII of 2004, article 615 makes the reserved portion a credit against the estate. On giving a will the effect of its own words, the court cited the Court of Appeal (10 March 2025 and 16 April 2004).

Source

Court of Appeal (Superior Jurisdiction), 462/2012/1, 30 April 2026.