At the end of 2024, Polish inheritance law changed as amendments to the Civil Code came into force. One controversial change is the expansion of the catalogue of prerequisites for declaring an heir unworthy of inheritance.
The notion of "unworthiness" of the inheritance was regulated by Article 928 § 1 of the Civil Code ('the Civil Code') and, until 15 November 2023, covered the following circumstances: (i) the commission of an intentional grave offence by the heir against the testator; (ii) inducing the testator by deception or threat to make or revoke a will; (iii) preventing the testator from making or revoking a will by threat or deception; (iv) the intentional concealment or destruction of the testator's will; (v) the forging or alteration of a will; and/or (vi) the knowing use of a forged or altered will by another person.
Determining whether a given heir is unworthy of the inheritance takes place through court proceedings initiated as a result of filing a lawsuit and ends with a judgment stating the unworthiness of the heir to receive the inheritance. The declaration of unworthiness of the inheritance may be requested by anyone with legal interest, within a year from the date of becoming aware of the reason for unworthiness, but no later than within three years from the opening of the inheritance (i.e. the testator's death). As soon as the judgment becomes final, the unworthy heir is treated as if he or she had not lived to see the opening of the inheritance.
As of 15 November 2023, the list of grounds for declaring an heir unworthy has been supplemented by two more:
- persistent evasion of an obligation to pay maintenance to the testator as determined in amount by a court decision, an agreement concluded before a court or other authority or another agreement;
- persistent evasion of an obligation of care towards the testator, in particular arising from parental authority, guardianship, the exercise of the function of foster parent, the matrimonial obligation of mutual assistance or the obligation of mutual respect and support between parent and child.
In the justification of the bill, the legislator pointed out that the extension of the catalogue of prerequisites of unworthiness of inheritance by the behaviours described above is an implementation of the state's duty to watch over the testators' personal goods and a reaction to the unethical behaviours of the heirs. In addition, they emphasized that the new regulation, through the use of the adjective 'persistent', will refer only to those behaviours that are long-lasting, repetitive, characterised by ill-will and tenacity, and deliberate, which will allow the courts to make an individual assessment of each situation presented to them and determine whether an heir can indeed be considered unworthy of inheritance.
The legislator also indicated that the amendment concerning persistent evasion of maintenance obligations will enable those heirs who have not been convicted of the crime of failure to pay support obligations, but the totality of their behaviour will allow the civil court to declare them unworthy of the inheritance. In the opinion of the legislator, however, these changes will not jeopardise the principle of the most complete execution of the testator's will, due to the possibility of the testator forgiving an unworthy heir. At the same time, by virtue of the intertemporal provisions, the introduced change will only apply to events constituting the basis for declaring an unworthy heir to inherit, occurring after this Act enters into force.
For the record, it should be pointed out that these amendments were negatively assessed by the Office of Parliamentary Analyses of the Chancellery of the Sejm, which stated that they were "of an ambiguous and evaluative nature, which may cause problems of interpretation and lead to interference with the order of succession sometimes against the will of the testator."
Before assessing the effects of this amendment on Polish inheritance law, in my opinion, it is necessary to refer to the statistics of court cases involving recognition as unworthy of inheritance for the years 2018 - 2023, published by the Ministry of Justice. In the period covered by the report, there was an increase in the receipt of cases of this type in courts of first instance (from 168 in 2018 to 191 in 2023 in district courts and from 57 in 2018 to 103 in 2023 in regional courts), while there was also an increase in the number of cases not heard in a given year and left to be heard in the following year (from 145 in 2018 to 162 in 2023 in district courts and from 71 in 2018 to 161 in 2023 in regional courts). Correlated with the above is an increase in the number of cases pending and left to be heard in the following year in the courts of appeal (from 8 in 2018 to 19 in 2023 in district courts as courts of second instance and from 9 in 2018 to 18 in 2023 in courts of appeal).
It should also be noted that the vast majority of the cases seeking declarations of unworthiness of inheritance pending before the courts of first instance in 2018 - 2023 were concluded with decisions of a formal nature (392 suits were returned, 15 were rejected and 161 proceedings were discontinued), while in the case of decisions of a substantive nature, decisions to dismiss 326 suits prevailed, while only 206 claims were upheld in whole or in part. At the same time, on appeal, the majority of appeals filed were dismissed - 119 of the proceedings were closed with a formal decision (5 judgements were overturned or reversed and referred for re-examination, 21 appeals were rejected, 5 appeal proceedings were discontinued) and only in 14 cases, judgements allowing the lodged appeal were issued. For the sake of argument, it should be noted that a large number of cases were disposed of in a different manner (before the courts of first instance - 351, before the courts of appeal - 9) The report does not indicate how many of the returned actions were successfully re-filed.
In view of the above statistics, the following conclusions may be drawn with regard to proceedings for declarations of inadmissibility of succession before Polish courts until 31 December 2023:
- the number of cases for declaring inadmissibility of inheritance is increasing, including the number of cases examination of which has been postponed to the next period;
- the majority of cases are terminated without being examined on the merits, most often as a result of the dismissal without prejudice, thus for reasons on the part of those seeking a declaration of inadmissibility;
- the majority of suits examined on the merits are dismissed, thus no grounds for declaring inadmissibility of inheritance have been established.
It seems reasonable to assume that some of the cases of declaration of unworthiness to inherit are brought because of ongoing disputes between heirs and have no legitimate grounds. At this point, it is still important to make the caveat that a significant increase in the number of cases has occurred after 2019, which can most likely be related to the excess number of deaths caused by the Covid-19 pandemic and the increased number of open inheritances.
In view of the above situation in the context of proceedings for declaring an heir unworthy of inheritance, the introduction of two additional conditions of evaluative and imprecise nature (in particular the condition related to the obligation of exercising custody) should be assessed negatively. As a result of the introduced changes, there will most likely be an increase in the number of cases seeking to declare an heir unworthy of the inheritance, which will not have any justified, real grounds, but will be caused by subjective assessment of the behaviour of one heir by another.
It is even possible that situations may arise in which persons whose elimination was not desired by the testator may be deprived of their share in the succession, thereby breaking the basic rules of the succession procedure. In addition, the introduction of a premise concerning persistent evasion of a maintenance obligation towards the testator is not so much a supplement to the premise of committing a grave offence to the detriment of the testator, as it is a circumvention of it and makes it possible to recognise as unworthy a person in relation to whom the realisation of the elements of a prohibited act under Article 209 of the Criminal Code has not been established.
It is also difficult to agree with the legislator that sufficient protection against the prerequisites of unworthiness of inheritance in force from 15 November 2023 is the institution of forgiveness of the heir by the testator. This is because forgiveness can only take place after a premise of unworthiness has arisen and if the testator has knowledge e of its existence. In the case of prerequisites of an evaluative nature, it is possible that the testator will not consider the behaviour of the heir in question to be the realisation of the prerequisites of persistent default or persistent evasion of custody, due to, for instance: the existing agreement between him and the heir and, as a result, will not consider it necessary to perform the act of forgiveness.
Moreover, the increase in the number of cases based on these grounds, requiring the courts to gather evidence and assess it more thoroughly than in the case of the grounds existing until 15 November 2023, may lead to delays and protraction of proceedings. All the more so as in the case of succession cases, which in Poland are still predominantly family-based, the main source of evidence will be family members or persons closely related to the testator and the heirs, whose assessment is more demanding.
In conclusion, although these changes have been introduced to protect the rights and interests of the testator and the heirs, they may in fact have negative consequences in the form of an increase in the number of cases brought by those subjectively convinced that one of the new conditions has been fulfilled and even a lack of stability and certainty in the succession.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
