Reserved portion is worked out only on proved assets

The Court of Magistrates (Gozo), in its superior jurisdiction, on 8 April 2026 liquidated the reserved portion due to six siblings from their late father's estate. Magistrate Brigitte Sultana counted only the assets whose existence and value were proved, and presumed that all of them had belonged to the parents' community of acquests. Each child was awarded €11,107.69 with interest, and the mother's bank money was divided under her will.

The facts

In C.R. vs C.C., four brothers sued their brother and their sister. The father's will, made jointly with the mother, left the six children the reserved portion and made his wife universal heir. She died six years after him.

Her own will left one-third of her bank money and investments to her daughter as a prelegacy, a legacy to someone who is also an heir, and two-thirds to her five sons. It made all six children universal heirs in equal shares.

The plaintiffs asked the court to liquidate the parents' community of acquests, pay their reserved portion out of the mother's estate and divide her assets. They also asked that their sister account for a power of attorney she had held for the mother's bank matters.

The defendants did not oppose payment. They argued that the plaintiffs, as the mother's heirs, had to bear part of it and had taken belongings of the father. They counterclaimed for their own reserved portion. The assets listed included two fishing boats, one of them sold for the mother by a son acting under a power of attorney.

What the court held

The court took each asset in turn. Some jewellery was proved to exist, but no party proved its material or value, even after the court issued a decree during drafting asking for that evidence. The court accepted €1,470 in cash kept in a tin, which both sides mentioned, but not an alleged box of money that a witness admitted he had never seen.

The father's investments had been redeemed before his death. The parties declared that the second boat had no value. The furniture had been abandoned with the rented properties when the mother gave up the leases, so the plaintiffs' later removal of some of the father's items could not cost them their reserved portion.

On the power of attorney, the plaintiffs had called bank witnesses but had not cross-examined their sister. The court held that the bank statements in the record should satisfy them.

No evidence showed which assets were paraphernal, that is, the separate property of one spouse. The court therefore applied article 1321(1) of the Civil Code (Chapter 16 of the Laws of Malta): "Il-beni kollha li l-miżżewġin ikollhom jew parti minnhom ikollha, jitqiesu li jagħmlu parti mill-akkwisti sakemm ma jkunx ippruvat xort’oħra." (All property the spouses or either of them hold is deemed part of the acquests unless the contrary is proved.)

Bank balances at the father's death came to €246,479.48, so each spouse held half, €123,239.74. Adding half the boat's sale price, which a court-appointed technical expert found fair, and half the cash gave €133,292.24 as the father's share of the community.

Under article 615, the reserved portion is a credit for its value against the estate. Under article 616(1), children take one-third of the estate if they are not more than four, and one-half if they are five or more. With six children and no proved debts or funeral expenses, the court halved €133,292.24 and divided the result into six shares of €11,107.69.

Because the father's universal heir was the mother, and all six children are her heirs, the court held that payment must follow the plaintiffs' plea that every heir bears a share of the debt.

It awarded each side interest at 8% a year from the date its claim was filed. The mother's bank money is to be divided under her will once the reserved portions are paid: one-third to the daughter and two-thirds to the five sons. The court appointed a notary for any deed of division, refused a judicial sale and split the costs into six.

Why it matters

A reserved-portion claim is decided on proof, not recollection. The party who says an asset existed must also prove what it was worth, or it drops out of the calculation. Where no one proves which assets were paraphernal, article 1321(1) places everything in the community, and the deceased's estate is only half of it.

Where it sits

The reserved portion is the share of an estate the law keeps for descendants and the surviving spouse, whatever the will says. It is no longer paid in kind: the child holds a credit for its value against the heir.

The court relied on the First Hall of the Civil Court (27 April 2017), which in turn cited the Court of Appeal (10 June 1949). That judgment holds that the portion is claimed from the heir and is calculated on the whole estate after debts and funeral expenses, under article 620(2). It is divided equally among all the children counted under article 618(1).

Source

Court of Magistrates (Gozo), Superior Jurisdiction, 59/2020, 8 April 2026.