In the Polish legal order, the only act by which you can dispose of your property in the event of death is a will. In the field of disposing of assets, the testator uses the principle of freedom of testing, which means that, apart from certain cases specified in the Act (e.g. regarding the prohibition to attach a condition and time limit when appointing a will), the heir has full freedom as to appointing heirs, and making entries, both regarding the persons for whom they are made and the assets which are transferred.
The freedom of testing outlined above does not, however, exclude the rights of loved ones to receive a reserved share in the event in which they would be left out of the will. According to the content of art. 991 § 1 of the Civil Code:
“To the descendants, the spouse and parents of the testator who would be called to inherit from the Act, are due if the entitled person is permanently unable to work or if the descendant is entitled to a minor – two-thirds of the value of the inheritance share that would fall to him in statutory inheritance, in others accidents – half of the value of the share (reserved share). “
The above provision is intended to protect the property interests of persons close to the testator in the event of a disposing of their assets in a will. It should be noted that in accordance with the wording of Article 991 of the Civil Code. persons entitled to the reserved portion are only the descendants, the spouse and parents of the testator who would be called to inherit from the act. When determining the right to a reserved share, it is necessary to analyze whether the person would be called to inherit if the testator did not make a will. This means, for example, that the testator’s parents are not entitled to any reserved share if, according to the rules of statutory inheritance, the testator’s children and his spouse are appointed in the first place.
The amount of reserved portion, as defined in art. 991 § 1 of the Civil Code. is half the value of the share in the inheritance that would be entitled to in the event of statutory inheritance, or two-thirds of the above. participation (in the case in which the person permanently incapable of work or the descendant minor of the testator is entitled).
It should be noted that the right to a reserved share belongs to the holder regardless of the dispositions of property specified in the will. If the holder of the reserved share has not received the reserved share of the testator, pursuant to Art. 991 § 2 of the Civil Code. he is entitled to a claim against the testamentary heir for payment of the sum of money needed to cover the reserved portion or to supplement it. This claim does not invalidate the will, but causes the obligation to pay the sum of the reserved portion by the will of the will. For example, this means that if the father of two adult children in the will transferred the entire property to one of them, the other may claim the payment of a reserved portion of half of his share (in the example above it would be a quarter of the estate).
Deprivation of the right to a reserved share is only possible if the Court declares unworthy of inheritance or disinheritance in a will.
In accordance with art. 928 § 1 of the Civil Code. an heir may be considered by the court to be unworthy of inheritance if:
1) intentionally committed a serious crime against the testator;
2) tricked or threatened the testator to draw up or revoke a will or in the same way prevented him from performing one of these activities;
3) intentionally hid or destroyed the testator’s will, forged or rewritten his will, or knowingly used a will by another person forged or forged.
Anyone who has an interest in this matter may declare an heir unworthy, within the time limits specified in art. 929 of the Civil Code, at the same time it should be indicated that, as per Article 6 of the Civil Code the obligation to prove the circumstances justifying the recognition of an heir as unworthy lies with the person who wants to derive legal effects from it.
Art. 1008 of the Civil Code determines the grounds on the basis of which the heir may disinherit the heir and thereby deprive him of the right to a reserved share. According to it, the testator may deprive the descendants, spouse and parents of a reserved share in the will, if entitled to the reserved share:
1) against the will of the testator, he acts persistently in a manner contrary to the principles of social coexistence;
2) committed an intentional crime against the testator or one of his closest relatives against life, health or freedom or blatant worship;
3) persistently fails to fulfill family obligations towards the testator.
At the same time, in accordance with art. 1009 of the Civil Code the reason for disinheriting the reserved person should result from the content of the will. This reason should clearly result from the wording in the will. As follows from art. 6 of the Civil Code the obligation to prove disinheritance lies with the person who derives legal effects from this fact (most often it would be a testamentary heir who relies on disinheritance in order not to pay the heir of the statutory heir). In this case, it is the person’s responsibility to prove both the fact that disinheritance took place (presenting a will and its relevant entry), and the truthfulness of the grounds for disinheritance indicated (e.g. when, where and how he persistently failed to fulfill family responsibilities towards the testator). in this case, it should also be proved that it was of a “persistent” nature, ie purposeful, long-lasting and resulting from the will of the disinherited).