Heirs cannot claim their share of one asset before division

The First Hall of the Civil Court held on 18 May 2026 that co-heirs cannot sue one of the other heirs for the value of their share in a single asset of an undivided estate. Madam Justice Rachel Montebello found that a petrol station business and its licence still belonged to the estate, as the plaintiffs claimed. She rejected their demand for compensation because it amounted to a partial division that needs the consent of all heirs.

The facts

In G.J. vs F.A., the plaintiffs were grandchildren and great-grandchildren of a man who died in 1995. His will, and his wife's, named their children and the children of a daughter who had died as heirs in equal shares. Among the assets was a petrol station business, run under a permit issued in his name in 1978.

F.A., one of his sons, had run the business alone since his death, and in 2010 the regulator reissued the authorisation in his name. The plaintiffs asked the court to declare that they held undivided shares in the licence and the business, and to order F.A. to pay them compensation for those shares.

F.A. filed no sworn reply, and the case went ahead in his contumacy, that is, his default. In earlier warrant proceedings he had produced certified copies of two private writings, dated 1997 and 1998, under which his co-heirs were said to have transferred their rights in the business to him.

What the court held

The copies bore none of the signatures of the parties named in them, and the originals were never produced. The plaintiffs had not taken the correct steps to obtain them from the defendant's lawyer. The court therefore could not treat as proved, under article 643 of the Code of Organization and Civil Procedure (Chapter 12), that the writings were never signed.

Even so, it gave the copies no value. In 1997 Enemalta Corporation told F.A. that supplying him with fuel did not mean it recognised him as the licensee. He himself testified to signing only one writing, and said his siblings had signed papers letting him enjoy the station.

The court accepted the plaintiffs' account. The co-heirs had received Lm5,000 for each share so that F.A. could run the business alone until the estate was divided. The business and its licence therefore remained part of the undivided estate, and the court declared that F.A. occupies and runs it alone.

The compensation demands failed. The plaintiffs were not seeking the division of the whole estate, only payment for their share of one asset. The court described this as “talba għall-qasma parzjali u sforzat ta’ waħda biss mill-beni tal-patrimonju kollu tad-defunt” (a claim for the partial and forced division of just one of the assets of the deceased's whole estate).

Articles 908 and 911 of the Civil Code (Chapter 16 of the Laws of Malta) require the whole estate to be brought into the division. Under article 946, each heir is then treated as succeeding only to the assets in his own share. A partial division needs the consent of every co-heir.

The court added that F.A., who on the plaintiffs' own case held one-ninth, could not alone be ordered to pay for a common asset. Read as a claim to a share of the profits, the demand failed too. The plaintiffs admitted that the payment let F.A. carry the risks and keep the profits until the division, so they had already taken their share of the returns.

The court ordered the plaintiffs to pay the costs.

Why it matters

Heirs who want the value of one asset in an undivided estate must sue for the division of the whole estate, against all the co-heirs, unless everyone agrees to something else. A declaration of co-ownership does not bring payment with it. A sum accepted to let one heir run a business alone can bar a later claim to its profits.

Where it sits

The rule against partial division belongs to the law on partition of inheritances, which article 907 ties to the rules on dividing common property and on licitation in articles 496 to 541. The court relied on the Court of Appeal (Inferior Jurisdiction) (12 March 1979), which held that an heir may not pick out single assets for judgment but must seek the liquidation of all of them.

It also cited the First Hall of the Civil Court (30 March 2012 and 20 March 2003), and the Italian writer Laurent. They hold that only the unanimous consent of the co-heirs allows a partial division.

Source

First Hall of the Civil Court, 875/2018, 18 May 2026.