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2023 – A Year of Revolution in Inheritance Law (Part II)

7 July 2023

Sticking to the topic of inheritance law and in reference to our previous publication 2023 – A  year of Revolution in Inheritance Law (Part I), it should also be mentioned that the second draft concerning changes in inheritance law (the draft bill on amendments to the Act – Civil Code; UD448) is currently being advanced by the government.  The proposed changes are not controversial so, once the draft is brought to the Parliament, they could be adopted quickly and enter into force later this year.

This publication will take a closer look at the following proposed changes:

1/shorter validity of special testaments;

2/modification of the premises guaranteeing the validity of an oral testament and the means of proving it;

3/ abolition of the institution of travel testaments;

4/ modification of the cases in which a military testament can be made;

5/ limitation of the circle of persons who may be a witnesses to a testament.

 

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1/ As is well known, it is not always possible for a testator to express his or her last will under normal circumstances and to draw up an ordinary testament (in the form of a notarial testament, a holographic testament or an allographic testament). For this reason, Polish law now provides for as many as three forms of special testament: the oral testament, the travell testament and the military testament. At the moment, a special testament ceases to be valid six months after the circumstances which justified the non-compliance with the form of the ordinary testament have ceased to exist. The six-month period is suspended for the time during which the testator is prevented from drawing up an ordinary testament. The proposed rules are designed to reduce this time limit by half. This means that, if the proposed regulations come into force, the lapse of special testaments will take place after three months without any further action on the part of the testator or potential successors.

2/ The reason for the planned changes to oral testaments is, unfortunately, that they are forged (far more frequently than other types of testaments). It is undoubtedly a form of declaration of the testator’s will which causes considerable evidence problems in court practice. At present, an oral testament with the simultaneous presence of at least three witnesses may be drawn up if there is a fear of the testator’s imminent death or if, owing to special circumstances, it is impossible or very difficult to use the ordinary form. The proposed amendment provides that a testator may make a last will and testament orally in the presence of at least three witnesses where special and urgent circumstances make it impossible or excessively difficult to follow the ordinary form of a will. This move will effectively reduce the current requirements for drawing up an oral testament to a single combined premise, and in addition the special circumstances justifying the use of an oral testament will have to occur suddenly.

3/ A travel testament is a special testament which may only be drawn up during a cruise on a Polish ship or aircraft in front of the ship’s commander or his/her deputy in the presence of two witnesses. The importance of this form of testament in legal transactions is marginal, so the legislator plans to remove it from the Polish civil law system. All the more so as a person on board a ship or aircraft will still be able to draw up a holographic (handwritten) testament and sometimes also use an oral testament.

4/ It is important to note that the regulation of military testaments is not to be found where the regulation of other testaments is located. The provisions of the Civil Code only provide authorisation for the Minister of National Defence to issue a decree regulating military wills in consultation with the Minister of Justice.  The 1965 decree issued on this basis enumerates the circle of persons entitled to express their last will in this form and provides for only three strictly defined situations when a military testament may be drawn up: during mobilisation; during war; during captivity. These conditions are too narrowly defined so that the institution is not used in practice. For this reason, the possibility of drawing up a military testament is to be extended to all activities of the armed forces in order to cover the participation of Polish soldiers in peace-keeping operations of the international armed forces or military operations abroad.

5/ The provisions of the Civil Code explicitly mention the persons who cannot be witnesses when a testament is made. This is an important issue, as the participation of witnesses in the expression of the last will is necessary in the case of as many as four of the six forms of testament provided for by the law, i.e. allographic, oral, military and travell testament. In doing so, a distinction must be made between absolute and relative incapacity to witness a testament. Absolute incapacity means that a particular person cannot be a witness to the drafting of any testament. The latter precludes a person from acting as a witness for only certain acts of the last will and it is the relative incapacity that the proposed changes address. Currently, a person for whom any benefit is provided in the testament cannot be a witness at the making of a testament. The spouse of such a person, his or her first and second degree relatives or relations by affinity and persons in an adoptive relationship with him or her may also not be witnesses. The proposed regulation extends this catalogue in the case of relatives or affinities up to the fourth degree and adds persons in an adoption relationship with the beneficiary of the estate. Also excluded is the possibility for persons who are in actual cohabitation with the person who receives some benefit from the testament to be a witness. According to the drafted provisions, a person authorised to represent a legal person or an organisational unit which is not a legal person and to which legal capacity is granted by law, as well as a partner or shareholder of such a person or unit for whom any benefit is provided for in the testament, will also not be able to be a witness to the testament.

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If you have any questions regarding succession law, we invite you to contact the team of FORTON Legal Łatała i Wspólnicy sp. k.

Author:

Angelika Ciżyńska-Pałosz, PhD

Advocate

Angelika Ciżyńska-Pałosz, PhD

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