1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union legislation?
[‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(i) relates to the signature and the content of the authentic instrument; and
(ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.]
If so, what are they?
All acts received and signed by a Notary in Malta are deemed authentic instruments, as they are Notarial Acts drawn up and/or received by notaries who are charged by law to receive acts inter vivos and wills, and to attribute public faith thereto, as defined in Article 2 of the Notarial Profession and Notarial Archives Act, Chapter 55 of the Laws of Malta.
Are these only notarial acts or also acts of other authorities?
All original acts issued by the Public Registry, the Land Registry, Court Registries, the Registrar of Companies, and other such and similar official registers are deemed authentic instruments as they are issued by a competent authority empowered for that purpose by the laws of Malta.
2. In your legal system, does the authentic instrument have enhanced probative value? What are the rules that provide that?
Under the Maltese legal system an authentic act has an enhanced probative value in comparison with other documents in the sense that it is proof of its own contents. A notary public, upon signing and finalising an authentic act attributes public faith to that authentic act. This results from Article 2 paragraph (1) of the Notarial Profession and Notarial Archives Act Chapter 55 of the Law of Malta which states:
Notaries are public officers. They are charged to receive acts inter vivos and wills, and to attribute public faith thereto; they shall be responsible for their custody and shall give out copies and extracts of or from such acts or wills.
3. Do all authentic instruments have the same enhanced probative value?
4. Enhanced probative value concerns
- The date on which the authentic instrument was drawn up
- The place where the authentic instrument was drawn up
- The signature by the parties of the authentic instrument
- The parties’ declarations
- Appearance, identification and consent of the parties
5. Enhanced probative value can be contested:
Before which authority: Courts of Law
According to which procedure (state the applicable rules):
An authentic act is proof of its own contents, however it may still be contested in a Court of Law. The contestation can be made on various grounds, such as that consent of one of the parties was vitiated or that the one of the parties did not have capacity to contract.
Within what timeframe:
No action for the nullity or annulability of a Notarial Act can be brought about after the lapse of ten or five years respectively, from when the act is registered in the Public and/or Land Registry.
1. In your legal system, which authorities or delegates of public authority can issue authentic instruments in accordance with Article 3 (1) (i) of Regulation 650/2012?
2. Can you indicate which are the most common authentic instruments in the case of a succession to the estates of deceased persons and which authorities issue them?
- Wills – under Maltese legal system these necessarily take the form of an authentic act and are therefore drawn up only by a Notary public.
- Causa mortis – the declaration of assets of a deceased for tax purposes is also drawn up necessarily in the form of an authentic act and therefore drawn up only by a Notary public. The purpose of this authentic act however is purely fiscal and therefore does not impact the Succession Regulation.
- Renunciation of succession: A succession can be renounced to by means of an authentic act drawn up by a Notary Public. This can also be done by means of a note filed in the Registry of the Court of Voluntary Jurisdiction. (NB: Acceptance of succession happens automatically under Maltese succession legislation and is not done by means of an authentic act).
- Inventory: A deed of inventory relating to the estate of a deceased person is also drawn up by means of an authentic act published by a Notary Public.
- Any other act of compromise between heirs.
3. Probative value of certain specific acts, for example the “acte de notoriété” in France and Italy
An act of notoriety may be drawn up by public deed with the requisite formalities, in which case, it has the same probative value of an authentic instrument.
A protest of a bill of exchange or a sea protest drawn up by a Notary Public will have the same probative value of an authentic instrument.
1. What types of family law instruments exist?
There are a number of authentic acts which are drawn up in the field of Family Law.
Separation – A consensual separation must take the form of an authentic instrument and therefore must be necessarily drawn up by a notary public. This is in contrast to a contested separation for which final judgement will be handed out by the competent court.
Cohabitation acts – Partners who wish to enter into a cohabitation agreement must do so by appearing on an authentic act drawn up before a notary public. There are other forms of cohabitation, such as a unilateral declaration of cohabitation which does not take the form of an authentic act, but where the parties wish to enter into a cohabitation agreement they must do so by entering into an authentic act drawn up by a notary public.
Marriage agreement (prenuptial agreement) – These also must take the form of an authentic act and must therefore be drawn up by a notary public.