Making a will in Malta: public or secret will
Maltese law recognises two ordinary forms of will: the public will, received and published by a notary, and the secret will, written by or for the testator, sealed and delivered to a notary or to the registrar of the court of voluntary jurisdiction (articles 654 to 660 of the Civil Code, Cap. 16). A handwritten will simply kept at home or with a relative, without delivery, is not one of these forms and, outside the special privileged wills, is null (article 672). Most people in Malta make a public will, often together with the spouse in one instrument known as a will unica charta (article 592).
A will lets you choose your heirs and legatees, leave specific items, appoint executors, and provide for a spouse or a vulnerable child. It cannot take away the reserved portion of your children and spouse, except on the grounds of disinheritance allowed by law (articles 615 to 632). Anyone who has completed sixteen can make a will, but dispositions by a person under eighteen are limited to remuneratory ones (articles 597 and 598).
This guide explains who can make a will, the choice between public and secret will, the role of witnesses after the 2011 reform of the Notarial Act, the reserved portion, joint wills, executors and how to change or revoke a will later.
Key facts
Deadline
There is no deadline to make a will, but it is valid only if it exists in a proper form at the date of death; a will made while the testator lacked capacity stays null even if capacity later returns (article 599 of Cap. 16). A notary who receives a secret will must present it to the court of voluntary jurisdiction within four working days (article 660). After the death, claims to the reserved portion lapse after ten years (article 845).
What to do
Make a list of what you own and whom you want to provide for. Write down immovable property in Malta and abroad, bank accounts, investments, shares in companies, vehicles, valuable items, life insurance and debts. Note who your descendants are, whether you are married or in a registered cohabitation, and who depends on you.
This list shows the notary how much of your estate you can freely dispose of. The reserved portion is calculated on the whole estate after debts and funeral expenses, and includes gifts you made during your life, except education expenses for your children (article 620 of Cap. 16). If you hold property in another country or are a foreign national, mention it: Regulation (EU) No 650/2012 allows you to choose in your will the law of your nationality to govern your succession.
Check the reserved portion before deciding on shares. Your children together are entitled to one-third of the value of the estate if they are four or fewer, and one-half if they are five or more (article 616 of Cap. 16). Your spouse is entitled to one-fourth if you have children, and one-third if not (articles 631 and 632), and has a right of habitation over the home that was your principal residence and the use of its furniture (articles 633 and 635).
The reserved portion is a credit in value, not a right to particular assets (article 615(2)), and you may not burden it with conditions (article 620(1)). You may disinherit a person entitled to it only on the grounds listed in article 623, such as refusing maintenance without reason or cruelty, stated expressly in the will (article 622). The person alleging the ground must prove it (article 625).
Choose between a public and a secret will. A public will is received and published by a notary like any other notarial instrument (article 655). It stays in the notary's records and cannot be lost or destroyed by a relative, which is why it is the usual choice.
A secret will may be printed, typed or written in ink by you or another person, must be signed by you at the end if you can write, and is closed and sealed (articles 656 and 657). You deliver it to a notary, or to the registrar of the court of voluntary jurisdiction in the presence of the judge or magistrate, declaring that the paper contains your will; the will dates from the delivery (article 658). Only you know its content until it is opened after death.
Decide whether you want witnesses. Since the 2011 reform of the Notarial Profession and Notarial Archives Act (Cap. 55), two witnesses are required for a notarial act only if an appearer asks for them or cannot sign (article 25(3)). For public wills and acts of delivery of secret wills, the notary must explain your right to have two witnesses present; if you choose not to have them, the notary records that you were informed and chose not to (article 25(3), provisos).
If you do want witnesses, each must be at least eighteen, born or residing in Malta and without any interest in the act (article 27(1) of Cap. 55). In a public will the heirs, legatees and their relatives up to uncle or nephew cannot be witnesses (article 670 of Cap. 16). Non-compliance with these formal rules makes the will null (article 672).
Consider a joint will with your spouse. Spouses may make a will in one and the same instrument, commonly called a will unica charta (article 592(1)). The dispositions for each spouse's estate must be set out in a separate part (article 592(3)). Each spouse can still revoke his or her part, and the will remains valid for the other spouse's estate (article 592(2)).
A common clause leaves everything to the surviving spouse, with the children as heirs after both deaths. If the spouses leave each other all or most of their property with the express condition that the one who revokes loses all rights under the joint will, a survivor who later revokes forfeits what he or she received from the predeceased spouse (article 593). Ask the notary to explain this clause before you sign.
Write clear dispositions and appoint an executor. Name your heirs (who take the whole estate or a fraction of it) and your legatees (who take specific items or sums) using full names and identity card numbers (articles 590 and 591). Say what happens if an heir dies before you or refuses, and how legacies are paid. Avoid ambiguous phrases like 'my house' if you own more than one.
You may appoint one or more testamentary executors to carry out the will (article 762); a minor or a person unable to contract obligations cannot act (articles 763 and 764). The executor must be confirmed by the court and give security before managing the estate (article 766). If you appoint several, they act jointly unless you allow them to act separately (article 774).
Sign the will before the notary. For a public will you attend the notary's office with your identity card or passport; the notary must be certain of your identity (article 26 of Cap. 55). The notary reads and explains the will and asks whether it reflects your wishes. Someone who does not speak Maltese or English can make a public will through an interpreter sworn by the notary (article 597(b) of Cap. 16).
For a secret will, you deliver the sealed paper; the notary draws up the act of delivery on the paper or envelope, signed by you, any witnesses and the notary (article 659), and presents the will to the court of voluntary jurisdiction within four working days for preservation by the registrar (article 660). Keep a note of the notary's name and the date.
Review the will after major life events. Marriage, divorce, the birth of a child, the death of an heir or the purchase of property abroad can change what you want and what the law reserves. A divorce ends the former spouses' rights to succeed to each other (article 66L(4)(c) of Cap. 16), but a disposition in a will in favour of the former spouse should be revoked expressly.
You cannot waive the right to revoke or alter a will (article 781). A will can be revoked wholly or partly by a later will, or by a notarial act in which you declare the revocation (article 782). Withdrawing a secret will from the notary or the registry revokes it (article 783). A later will that does not revoke expressly cancels only the inconsistent dispositions (article 786), so a full new will is cleaner.
What to watch out for
- Writing a will at home and keeping it in a drawer. Outside the privileged wills, only public and secret wills in the legal form are valid (articles 654 and 672).
- Ignoring the reserved portion. Children and the spouse can claim it within ten years of the death, and the dispositions are reduced accordingly.
- Disinheriting without stating a legal ground in the will. The person keeps the right to the reserved portion (article 629).
- Choosing heirs or their relatives as witnesses to a public will, which makes them incompetent witnesses (article 670) and risks nullity.
- Not explaining the forfeiture clause in a will unica charta. The surviving spouse may lose rights by revoking (article 593).
- Forgetting to update the will after a divorce or a new child.
- Assuming a will made abroad settles Maltese property. Check that it is valid in form and consider making a Maltese public will for property in Malta.
Legal basis
Frequently asked questions
Is a handwritten will valid in Malta?
Not on its own. Article 654 of the Civil Code recognises only public wills and secret wills. A handwritten will becomes valid as a secret will only if it is signed, closed and sealed and delivered to a notary or to the registrar of the court of voluntary jurisdiction (articles 656 to 658). Outside the special privileged wills, other forms are null (article 672).
Do I need witnesses to make a will in Malta?
Not necessarily. Under article 25(3) of the Notarial Profession and Notarial Archives Act (Cap. 55), two witnesses are required only if an appearer requests them or cannot sign. For a public will the notary must explain your right to witnesses and record in the will that you chose not to have them.
Can I leave everything to my spouse in Malta?
You can leave your spouse everything you are free to dispose of, but your children keep their reserved portion: one-third of the value of the estate if they are up to four, one-half if five or more (article 616 of Cap. 16). They may claim it as a credit against the estate within ten years.
Can I disinherit a child in Malta?
Only on the grounds in article 623 of the Civil Code, such as refusing maintenance without reason, cruelty or grievous injury towards you, stated expressly in the will (article 622). The ground must be proved after death by the person who relies on it; otherwise the child keeps the reserved portion (articles 625 and 629).
What is a will unica charta?
It is a will made by both spouses in one instrument, valid under article 592 of the Civil Code. Each spouse's dispositions are set out in a separate part, and either may revoke his or her part. A forfeiture clause can make a survivor who revokes lose what he or she received from the predeceased spouse (article 593).
At what age can you make a will in Malta?
From sixteen. Persons under sixteen cannot make a will (article 597(a) of Cap. 16), and between sixteen and eighteen a will may contain only remuneratory dispositions (article 598). The testator must also be capable of understanding and volition; a will made while incapable is null even if capacity returns (article 599).
What is the difference between a public and a secret will?
A public will is drawn up, received and published by the notary and kept in the notary's records (article 655). A secret will is written by you or another person, sealed and delivered to a notary or the court registrar, and its contents remain unknown until it is opened after death (articles 656 to 660 and 779).
How do I change or revoke my will in Malta?
By a new will, or by a notarial act declaring the revocation (article 782 of Cap. 16). Withdrawing a secret will from the notary or the registry also revokes it (article 783). You cannot give up the right to revoke (article 781). A revoked disposition revives only through a fresh will (article 785).
Can a foreigner make a will in Malta?
Yes. Foreign nationals may make a public or secret will before a Maltese notary, using an interpreter if necessary (article 597(b)). Under Regulation (EU) No 650/2012 your succession is governed by the law of your last habitual residence unless you choose in the will the law of your nationality, so state that choice clearly.
Does my spouse lose inheritance rights if we are separated?
Not automatically. A spouse who caused the separation on certain grounds may forfeit succession rights under articles 48 and 638 of Cap. 16, and spouses may renounce each other's succession in a separation deed (article 60(3)). After divorce, succession rights end (article 66L(4)(c)). Update your will in any of these situations.
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