Cap. 55 Art. 94AReview of of notarial acts.

(1) For the purposes of this Part and Part VI, unless the context otherwise requires, the following definitions shall apply:

"acts" means the original acts except those published inter vivos in terms of Part IIIA;

"Chief Notary" means the Chief Notary to Government, and includes a Notary to Government duly delegated by him and approved by the Court;

"basis year" means any calendar year starting on the first day of January and ending on the thirty first day of December of that year;

"Council" means the Notarial Council; "Court" means the Court of Revision of Notarial Acts established by article 110; "inspection" has the meaning assigned to it in Part VI; "Minister" means the Minister responsible for notarial affairs;

"notary" includes notary keeper; "partial incapacitation" has the meaning assigned to it in sub-article (19); "period of presentation" means the months from April to September both inclusive immediately following the end of any basis year;

"period of review" means a continuous period of twelve months starting on the first of July of the year immediately following the end of a basis year, during which period the notarial acts are reviewed; "President of the Council" means the President of the Council acting in such a capacity in the name of the Council, or his delegate;

"previous basis year" means the basis year immediately preceding the period of presentation, and shall include any part thereof; "review" has the meaning assigned to it in article 94B;

"review officers" means the persons holding such an appointment in terms of sub-article (4);

"wills" means the the original wills; and includes the original acts of delivery of secret wills published up to 31st December 2011.

(2) It shall be the duty of the Council to ensure that all acts published in any basis year are presented to a review officer during the period of presentation so that the latter may review them during the period of review, and that within two months immediately following the completion of the period of review, the acts are inspected by the Court in terms of this Act.

(3) For the purposes of sub-article (2), the President of the Council shall from time to time by application to the Court submit the names of such qualified persons as the Council deems appropriate for appointment as review officers, and the Court shall within fifteen days approve or otherwise their proposed appointment.

(4) The Council shall appoint as review officers the persons so approved for such periods of time, which may not be less than one year, and under such conditions as the Council shall determine.

(5) (a) No person shall be qualified to be appointed as review officer unless he holds or has held the warrant of notary or advocate for at least two years: Provided that a notary’s appointment as review officer shall be conditional on his resigning his office as notary as provided in article 14(1)(d); so however that, if he is not re-appointed as review officer or if he resigns the office of review officer, he may within three months of the date when he could have been re-appointed review officer or from the date of his resignation as review officer, apply to the Minister responsible for notarial affairs to be granted again the warrant to exercise his profession as notary and, in such case, notwithstanding any other provision of this or any other law and provided the President of the Council confirms to the Minister that the Council is in possession of the documents required by sub-article (12)(a), (b) and (c), the Minister shall submit his name to the President of Malta who shall forthwith re-appoint him notary, and his re-appointment shall be published in the Gazette in terms of article 5(1).

(b) If a review officer is not so re-appointed following his term as a review officer or if he resigns, he shall within seven days of the termination of his term as review officer or of his resignation hand over to another review officer as directed by the President of the Council all acts, registers, indexes, notes and other documents in his possession in view of his former appointment and, if he fails to do so, apart from any other liability in terms of this or any other law, he shall be awarded by the Court at the instance of the President of the Council a penalty of two hundred and fifty euro (€250) due as a civil debt in favour of the Council for every week or part thereof during which he fails to comply.

(6) A review officer shall not enter into his duties unless he has taken before the Court the oath of office as follows: "I, ...................... swear to exercise to the best of my ability the office of review officer established by the Notarial Profession and Notarial Archives Act, Chapter 55 of the Laws of Malta. So help me God.":

Provided that a review officer who, immediately following a period in such a capacity, is re-appointed for a further period or periods shall not take the oath of office again.

(7) A review officer shall have the duty and the power -

(a) to accept in the name of the Council the presentation of acts published by notaries;

(b) to review in the name of the Court the acts of notaries for the purposes of the relevant provisions of this and any other law;

(c) to collect from notaries the fees due for the review, and forward them to the Council as soon as he receives them; and

(d) to perform such other functions as may be assigned to him by this or any other law.

(8) (a) In all administrative matters related to the process of acceptance of acts which notaries present during the period of presentation, review officers shall act under the direction of the Council to which they shall be answerable; in all other matters including decisions taken when the acts are presented and during the review of the acts, review officers shall act independently of the Council but subject to any direction of the Court to which they shall be answerable.

(b) A review officer may apply to the Court for directions concerning the manner in which he may or should act in connection with any matter concerning the presentation of acts and their review; and the Court may give such directions, if any, as it thinks fit.

(9) Notaries shall be charged for such review a fee of five euro

(€5) per act which shall be due to the Council at the end of the basis year when the act was published, and the fee shall be collected by a review officer upon the presentation of the acts by the notary as provided in sub-article (12). Such fee shall be revised every ten years from basis year 2010 according to the cost of living index and, in default of such an index, in terms of regulations made by the Minister after consulting the Council: Provided that the said fee of five euro (€5) shall be due on deeds st published after the 1 January 2019.

(10) (a) During the period of presentation all notaries shall present to a review officer on dates and in places mentioned in the notice referred to in paragraph (d), in volumes bound as required by this Act, all the acts they published during the previous basis year including their respective indexes. They shall also present the copy of the notes of enrolment given to the notary by the Director of Public Registry in terms of articles 50(6) and 52(3):

Provided that the presentation of acts published by notaries referred to in article 22 shall be made at the Archives; however, the review of these acts, and other acts which may be deposited at the Archives but which would not have been reviewed, may take place at the places established in sub-article (10)(c)(v). In such cases the Archivist shall draw up a written statement in two copies to be retained as to one each by the Archivist and the Review Officer, which shall be signed by both the Archivist and the Review Officer containing a statement of:

(i) the number of volumes presented by the Archivist to the Review Officer; and

(ii) the number of acts in each volume.

(b) The Council shall ensure that the presentation of such acts be conducted in a transparent and orderly manner.

(c) (i) For the purposes of paragraphs (a) and (b), the Council shall in January of every year cause to be published in the Gazette a notice containing the following:

(i) a list of the names of all notaries who in the previous basis year were known to have practised their profession;

(ii) a list of the names of all keepers of the acts of notaries who practised their profession in the previous basis year;

(iii) a list of the names of the review officers assigned to each of the notaries mentioned in sub-paragraph (i);

(iv) a list of the names of the review officers assigned to each of the notaries keeper mentioned in sub-paragraph (ii); and

(v) a time-table with the dates when and the place where the acts, including their indexes, published during the previous basis year are to be presented to the respective review officer for his review.

(ii) For the purposes of sub-article (16), the same notice shall also contain a time-table with the dates when and the place where notaries and notaries keeper are to present to the Chief Notary for his review the wills, including their indexes, published during the previous basis year.

(d) Notwithstanding any other provision of this or any other law, the publication of the notice mentioned in paragraph (c)(i) and (ii) shall be deemed for all purposes of law to be sufficient notice to the notaries mentioned therein of their obligation to present on the dates and in the places mentioned in the notice the acts and wills including their indexes, and all other documents and to make the payments required by this and any other article of this Act.

(e) The Council shall cause to be published in the Gazette any amendment it makes to the notice mentioned in paragraph (c)(i) and (ii), but such amendment shall not be effective with regard to a notary or notary keeper referred to therein unless at least one month elapses from the date when he is so informed by registered letter.

(11) (a) Together with the presentation of acts, the notary shall submit a written declaration containing a statement of:

(i) the number of volumes presented,

(ii) the number of acts in each volume, and

(iii) the number of pages of acts in each volume.

(b) The review officer shall immediately check whether the number of volumes, the number of acts and the number of pages tally with the declaration and, if there is any discrepancy, the notary shall have the option either to re-present the acts within such time as the review officer shall determine which shall in no case exceed seven days, together with a declaration that tallies with the aforementioned details of the number of volumes, acts and pages, or to give his consent to the review officer to record on the declaration what the discrepancies are and the notary shall on the same day effect the required corrections regarding the number of volumes, acts and pages and make any corrections in terms of this Act in the progressive number of the acts and the page numbers.

(c) The review officer shall make two photostatic copies of the original with his comments, if any, one copy of which shall be authenticated by the review officer and given to the notary as a receipt of the acts that have been so presented, and the other shall be authenticated by the notary and kept by the review officer.

(d) The notary shall appear before the review officer either personally or through a special attorney constituted in writing.

(12) Together with the declaration required by sub-article (11), the notary shall also submit to the review officer the following:

(a) the insurance certificate referred to in article 10A, unless he presents a copy of the Court’s decree exempting him from complying with such a requirement;

(b) the personal details of the notary and such other information, including details of notarial deposit accounts, as may be required in terms of regulations made by the Minister after consulting the Notarial Council;

(c) a copy of the extract from the Gazette referred to in article 10B(2) if there has been a change in the notary’s name or surname; and

(d) the fees due for the review in terms of sub-article (9), and the Council’s annual fee for the previous basis year in terms of article 93A.

(13) It shall be the duty of the Chief Notary or the Review Officer appointed by the Notarial Council to ensure that all wills published in any basis year are presented to him in the Archives during the period of presentation so that he may review them during the period of review, and that within two months immediately following the completion of the period of review such wills are inspected by the Court in terms of this Act.

(14) For the purposes of sub-article (13), all notaries shall present to the Chief Notary or the Review Officer in bound volumes as required by this Act the wills which they published during the previous basis year together with a declaration regarding such wills containing information similar to that required in sub-article (11)(a) as well as the fee referred to in sub-article (15), and all the provisions on the functions and powers of review officers regarding the presentation of acts shall apply to the Chief mutatis mutandis Notary or the Review Officer, and the notaries shall have the same duties with regard to such presentation.

(15) Notaries shall be charged for such review a fee of five euro (€5) per will which shall be due to the office of the Notary to Government or Review Officer at the end of the basis year when it was published and shall be payable upon the presentation of such wills. This fee shall be revised every ten years from basis year 2010 according to the cost of living index and, in default of such an index, in terms of regulations made by the Minister after consulting the Council.

(16) The presentation of wills shall be made to the Chief Notary or Review Officer appointed by the Notarial Council in terms of the notice referred to in sub-article (10)(c)(ii) and all the provisions of sub-articles (10), (11) and (12) shall mutatis mutandis apply: Provided that where the notary appears through a special attorney, the Chief Notary shall not proceed to accept the presentation of wills unless the special attorney is also a notary who shall be bound to observe the same professional secrecy and confidentiality as required of the notary who published them.

(17) The Chief Notary to Government or Review Officer appointed by the Notarial Council shall not enter into his duties in term of this article until he takes before the Court the following oath: "I, ............................. swear to exercise to the best of my ability the office of accepting the presentation of and reviewing wills in terms of the Notarial Professions and Notarial Archives Act, Chapter 55 of the Laws of Malta, and to observe the same professional secrecy and confidentiality as required of the notaries who published them. So help me God.".

(18) (a) If a notary -

(i) fails to appear before the review officer and present to him the acts as required by this article, or

(ii) fails to make a complete declaration with regard to the acts in terms of sub-article (11)(a), or

(iii) fails to present the insurance certificate or the Court decree as required by sub-article (12)(a), or

(iv) fails to effect the full payments as required by sub-article (12)(d), he shall, subject to the following provisions of this article, be liable until he complies to a fine (ammenda) of fifty euro (€50) per week or part thereof, to start running from the date of filing of the application mentioned in the proviso to this paragraph, and he shall be partially incapacitated from exercising his functions until he complies: Provided that the review officer shall grant the notary a period of one month to comply and, if the notary fails to do so, the review officer shall, within three days of such failure, file an application in the Registry of the Court informing the Court of the notary’s failure and requesting it to order the Registrar to issue a formal subpoena in terms of article 120.

(b) The provisions of paragraph (a) shall mutatis mutandis apply to -

(i) the presentation of wills to the Chief Notary in terms of sub-article (14),

(ii) the submission in terms of sub-article (14) of a complete declaration regarding such wills,

(iii) the submission of a copy of the insurance certificate or the Court decree, and

(iv) the payment of the fee in terms of sub-article (15).

(c) If the notary fails to appear before the review officer or the Chief Notary on the date and at the place fixed in the subpoena and produce to him the originals, indexes and documents referred to in the subpoena and make the payments mentioned therein, the review officer or the Chief Notary, as the case may be, shall by application filed within three days of the date when the notary should have appeared before the review officer or the Chief Notary bring the notary’s alleged failure to the cognizance of the Court and request it to take the appropriate action.

(d) The Court shall by decree served on the notary and the Attorney General order that the notary and Attorney General make written submissions on the matter, and it shall also set a date for the hearing of the case. If the facts are proved, the Court shall either -

(i) impose the disciplinary punishment mentioned in paragraph (a), and partially incapacitate the notary until he complies, or

(ii) suspend him in terms of article 132.

(e) The Court’s powers in terms of this sub-article shall be without prejudice to its powers under article 123.

(19) (a) A notary who has been partially incapacitated from the exercise of his functions may not, during such incapacitation, exercise any notarial functions but he shall have the right and the duty -

(i) to sign and submit notices for the payment of duties and taxes in terms of fiscal laws,

(ii) to sign and deliver notes in terms of articles 50 and 52 of this Act, and notes of privileges and hypothecs in terms of the Civil Code,

(iii) to sign and submit applications at the Land Registry, and

(iv) to give copies, extracts and make declarations as required by article 74(1).

(b) The order of partial incapacitation shall be enforceable notwithstanding an appeal against the Court’s declaration of responsibility of the notary, or the award of a disciplinary punishment or the order of partial incapacitation itself.

(c) Unless the Court orders the seizure of documents in terms of article 123, the provisions of articles 17(1), 20, 70(1) and 126 shall not apply when a notary is partially incapacitated.

(d) (i) Where following an application filed by a review officer in terms of sub-article (18)(c), the Court partially incapacitates the notary, and the Chief Notary files a similar application with regard to the same basis year, the Court shall not incapacitate the notary for a second time but the incapacitation imposed following the review officer’s application shall likewise be deemed to apply to the notary with regard to the application of the Chief Notary, provided that the incapacitation shall not extend for more than six months.

(ii) The provisions of sub-paragraph (i) shall apply where the notary is partially mutatis mutandis incapacitated following the Chief Notary’s application and the review officer files a similar application with regard to the same basis year.

(e) A notary who publishes a notarial act while he is subject to partial incapacitation shall, at the instance of the Attorney General or the President of the Council, be deprived of his office and in addition, but in the Court’s discretion, he shall be liable to a fine of not more than five thousand euro (€5,000) for any notarial act which he publishes during such incapacitation.

(f) Notwithstanding any provision of this or any other law, no notarial act shall be invalid for the sole reason that it was published by a notary while he was subject to partial incapacitation.

(g) A notary who has been subject to partial incapacitation for a continuous period of six months shall be deprived of his office by the Court at the instance of the Attorney General or the President of the Council, and all the provisions of this Act regarding deprivation of office shall apply including the appointment of a notary keeper which the Court shall order in the same decree.

(20) (a) Where a notary who is subject to partial incapacitation complies with the requirements of sub-articles (10), (11), (12), (14) and (16), the review officer or the Chief Notary, as the case may be, shall immediately by note filed in the Registry of the Court inform the Court of such compliance.

(b) The Court shall forthwith by decree in camera rehabilitate the notary in the full exercise of his functions.

(c) The provisions of article 14(2) shall not apply to such rehabilitation.

(d) Both the note and the decree shall be served on the notary, the Attorney General and the President of the Council.

(21) The provisions of article 16 shall apply to partial incapacitation and rehabilitation therefrom.

(22) (a) If the notary who fails in his obligations in terms of sub-articles (10), (11), (12), (14) or (16) is the President or another member of the Council he shall, unless he has voluntarily resigned, forfeit his seat on the Council and, in the case of the President of the Council, his functions and powers shall be taken over by the most senior notary in the Council according to regulations made in terms of article 92(1).

(b) Regulations made under article 92(1) shall provide for such eventualities and, in default, the Minister responsible for notarial affairs shall make regulations to ensure transparency in such matters.