A gift to an heir's spouse escapes collation
After a retrial, the Court of Appeal holds that a son-in-law who received property by simulated sale owes no collation, because he is neither descendant nor heir and article 920 deems gifts to an heir's spouse exempt, while the daughter must collate her own share.
The Court of Appeal, composed of Judge Christian Falzon Scerri as Acting President, Judge Josette Demicoli and Judge Simone Grech, decided A.J. vs F.J. on 9 July 2026, on a retrial ordered on 8 June 2026. The question left open was whether property that a mother had passed to her daughter and son-in-law by two simulated sales must be brought into her estate.
The court held that the son-in-law owes no collation, because he is neither a descendant nor an heir and a gift to an heir's spouse is deemed exempt, while the daughter must collate her own share.
The facts
Two children of the deceased, M.A., one of them acting also for an absent brother, sued in the Court of Magistrates (Gozo) Superior Jurisdiction on 4 November 2016. They asked that three deeds be declared simulated: sales of 26 and 29 April 2010 of undivided shares in two properties in Nadur by M.A. to her daughter G.F. and G.F.'s husband J.F., and a datio in solutum of 2 April 2012 by M.A. to another daughter and her husband.
The fourth claim asked that the value of what was given be brought into the mass of the inheritance. The Gozo court rejected the claims on 28 March 2025. On 11 November 2025 the Court of Appeal, differently composed, found the 2012 deed a genuine datio in solutum but the two 2010 sales simulated donations, ordered the property given to G.F. and J.F. into the mass, and split the costs.
G.F. and J.F. then obtained a retrial under article 811(e) of the Code of Organization and Civil Procedure: on 8 June 2026 the court kept the findings on simulation but annulled the heads on collation and costs and ordered them reheard.
What the court held
The 2012 deed was judicially settled as a true datio in solutum, so nothing given by it falls to be collated. What remained was the value of the shares passed to G.F. and J.F. by the 2010 deeds.
Under article 913(1) of the Civil Code, children and descendants who succeed to an ascendant, by will or ab intestato, must impute to their share, in the interest only of the other children or descendants who are co-heirs, the value of everything received from the deceased by donation, unless the donor directed otherwise.
The institute rests on the presumption that the deceased meant to treat descendants equally, so that a lifetime gift is an advance on the share (Court of Appeal, 12 May 1950). It operates only between co-heirs who are descendants (article 930), never with collaterals (First Hall, 27 January 2005).
Three qualities must coincide in the person asked to collate: donee, co-heir and descendant; if one is missing there is either no object to bring in or no juridical title to demand it (Court of Appeal, 7 May 1923). And only a co-heir who could himself be asked to collate may demand it, the right and the duty being reciprocal (Court of Appeal, 22 May 1931).
Acceptance under benefit of inventory (article 913(2)), whether the donee was heir presumptive at the time (article 917), and unequal shares in the will make no difference.
J.F. is neither a descendant nor an heir of M.A., so the rules do not reach him at all. As the husband of a descendant and co-heir, article 920 settles his position in terms: "Id-donazzjonijiet magħmulin lil żewġ jew mart il-persuna li hija fi grad li tiret jitqiesu magħmulin bil-ħelsien mill-obbligu tal-kollazzjoni" (donations made to the husband or wife of a person entitled to succeed are deemed made with exemption from the obligation of collation).
Where the gift is made to both spouses jointly and only one is entitled to succeed, article 920(2) subjects that one's portion to collation. Nothing in the record showed that M.A. had exempted G.F. under article 914. The fourth claim was therefore granted against G.F. alone, and only the value of the shares she acquired by the two 2010 deeds goes into the mass.
Why it matters
When a lifetime transfer to a child and her spouse is attacked, the collation claim recovers at most the child's half. The spouse's half is exempt by law unless the donor said otherwise, and no reading of article 913 brings a non-descendant within it. Direct the collation claim at the descendant co-heirs only.
Where it sits
Collation (articles 913 to 938 of the Civil Code) is the mechanism of equality among descendants: it corrects lifetime gifts, not testamentary dispositions, and it is distinct from the abatement of dispositions exceeding the disposable portion.
The judgment applies the three-quality test and the spouse exemption of article 920, and names these authorities: Court of Appeal, 12 May 1950; First Hall, 29 November 1947; First Hall, 29 February 1912; First Hall, 27 January 2005; Court of Appeal, 7 May 1923; and Court of Appeal, 22 May 1931.
Source
Court of Appeal (Superior Jurisdiction), Appeal 96/2016/4, 9 July 2026: 96/2016/4