Testament and last will in Poland
- Inheritance in Poland
- Statutory succession
- Inheritance tax
- Property inheritance
Succession based on the testament
Testate succession in Poland is yet another way, besides intestacy, to dispose of one’s estate upon death. Polish Civil Code precludes the possibility of entering into a contract of succession and donatio mortis causa. This means that disposition of estate in the event of death can only be made by a testator through a last will. Only a person who has full capacity for acts in law can draw up and revoke a last will. A will can neither be drawn up nor revoked by anyone besides the testator. The testator may freely appoint an heir in their will. Testamentary freedom also applies to the manner in which the testator’s property is to be disposed of. The content of the will, however, must neither contradict nor be intended to circumvent the law.
There are ordinary and extraordinary wills. Extraordinary wills remain valid only if they are confirmed within 6 months after they have been drawn up, unless the testator had died before the end of this period.
- a holographic will – handwritten, signed and dated by the testator;
- a notarial will – drawn up by a notary in the form of a notarial deed;
- a nuncupative will – a last will given by the testator orally, in the presence of two witnesses, to a voit mayor , president of a city, a staroste, the marshal of a voivodeship, the secretary of a poviat or gmina or the head of a civil register office. The testator’s will is written down in the form of a record bearing a date on which it was drawn up and then read to the testator in the presence of witnesses. The record must be signed by the testator, the person to whom the will was declared, and the witnesses. If the testator cannot sign the record, that fact must be mentioned in the record with the reason thereof (deaf or mute persons cannot make their will in this form).
- an oral will – drawn up if there is a probability of imminent death of the testator or if, due to extraordinary circumstances, it is impossible or very difficult to observe the ordinary form of a will. In this case the testator may declare their last will orally in the simultaneous presence of at least three witnesses – the content of an oral will may be confirmed in such a way that one of the witnesses or a third party writes down the testator’s declaration within one year of its making, (specifying the place and date of the declaration and the place and date of the record), and that record is signed by the testator and two witnesses or by all the witnesses. If the content of an oral will is not confirmed in the above manner, it can be confirmed within six months from the day of opening the succession by consistent testimonies of the witnesses given before the court and if the examination of one witness is impossible or encounters obstacles that are difficult to overcome, the court may rely on the consistent testimonies of two witnesses,
- a will executed on a voyage – a will made during a voyage by a Polish sea-going vessel or aircraft before the commander or deputy commander of the vessel or the aircraft so that the testator declares their will to the commander or deputy commander in the presence of two witnesses. The commander or deputy commander of the vessel or the aircraft records the will of the testator indicating the date of its making, reads it to the testator in the presence of witnesses, whereupon the record is signed by the testator, the witnesses, and the commander or deputy commander of the vessel or the aircraft. If the testator cannot sign the record, the record must provide for the reason behind the absence of the testator’s signature – if it is impossible to observe this form, an oral will can be made.
- a soldier’s will – an extraordinary form of a will, which is not provided for in the Civil Code. Its form is defined in a regulation by the Minister of National Defense issued in agreement with the Minister of Justice.
The most popular, however, is an ordinary will drawn up at the notary’s office based on declarations and instructions of the testator or handwritten by the testator, even on an ordinary piece of paper. For this will to be valid it must include a date and place where it was drawn up and a legible signature affixed by the testator. A written will cannot be drawn up using a typewriter or a computer.
Testamentary dispositions – disinheritance, legacy, instruction, executor of a will
In a last will, the testator may do more than merely distribute property among particular persons. The Polish law also provides for the possibility of imposing specific obligations on an heir or obligating them to make a proprietary performance to a specified person.
As per Polish Civil Code through an instruction, the testator may obligate an heir or a legatee to perform a specific act or omission without making anyone a creditor.
It must be stressed that an instruction can only be put into effect through a will, so the testator must make it personally. Additionally, for the instruction to be effective, a will must be valid. On the other hand, an instruction which cannot be executed upon the opening of the succession or is contrary to the law or the rules of social co-existence is invalid.
An instruction is an obligation of a specific act or omission, and it can be either pecuniary or non-pecuniary. For example, a testator may, in their will, obligate an heir or a legatee to donate a certain sum of money for charity, or to arrange the testator’s funeral.
Both the heir and the legatee are obligated to comply with the instructions. Any heir as well as the executor of the will may demand the performance of the instruction unless it is in the sole interest of the person obligated to comply therewith. Where the instruction has regard to the public interest, its performance may also be demanded by the competent state authority. The execution of an instruction may be pursued through a court action brought by the above-mentioned persons.
In addition to an instruction, a will may contain other testamentary dispositions, such as an ordinary legacy or a legacy by vindication.
As per the Polish Civil Code through an ordinary legacy, the testator may, obligate an intestate or testate heir to make a specific proprietary benefit towards a specified person. Upon the testator’s death, an ordinary legacy gives rise to a claim in favor of the legatee and an obligation of a person charged with the delivery of a legacy. Thus, the only effect of an ordinary legacy is the establishment of an obligation relationship, meaning that upon the opening of the succession – even if the object of a legacy is a thing specified as to its identity – the ownership of said thing, together with the entire estate, passes to the heir as encumbered with the delivery of the legacy, and the legatee may only claim the ownership of the thing against that heir.
It should also be pointed out that unless otherwise stipulated in a will, execution of an ordinary legacy may be demanded immediately after the will is read. A legacy whose object is a thing specified as to its identity is ineffective if said bequeathed thing does not form part of the estate at the time of its opening or if the testator was obligated to dispose of the thing at the time of their death. It is worth mentioning that, unlike an heir, a legatee under an ordinary legacy is not called to succession and, consequently, is not liable for the estate debts.
Legacy by vindication
Through a legacy by vindication a testator may decide the fate (ownership) of individual assets of the estate. In fact, by making use of a legacy by vindication, a testator makes sure that certain assets of the estate will continue to provide economic benefits even after their death if passed on to the “right” heirs. The object of a legacy by vindication may be, e.g., a thing specified as to its identity, a transferable property right, an enterprise, or an agricultural holding.
The main difference between an ordinary legacy and a legacy by vindication is that an ordinary legacy made by a testator in a will has a mere effect of obliging an heir to make a specific performance to the benefit of a specified person – a legatee, whereas through a legacy by vindication the ownership in the thing concerned vests directly in a specified person – a beneficiary of a legacy by vindication – upon the opening of the succession.
It is important to note that for a legacy by vindication to be effective, it should be made in a will having the form of a notarial deed. A notarial will is not, however, necessary to make an ordinary legacy. It should be also remembered that conditions or time limits reserved by a testator in a legacy by vindication are invalid. On the other hand, the mere reservation of a condition or a time limit does not invalidate the legacy itself – it remains valid as if those conditions and time limits did not exist.
Due to the nature of a legacy by vindication, there is no due date or statute of limitations that would apply to a claim for the execution of such a legacy. Since a legacy by vindication has ex lege effects upon the opening of the succession, no claim for its execution arises.
Revocation of a will
Importantly, a will may be revoked at any time by making a new will, by destroying the existing one or rendering it invalid, or by making changes to the will which indicate the testator’s intent to revoke it. As a rule, a will made later always takes precedence over the previous will. The date, including the time, of both dispositions of property upon death is always decisive. The legal form of those wills is irrelevant. If a person draws up a will in a notarial form and then in writing, the last disposition of property is binding provided that the conditions for recognizing a given form as valid are observed.
Procedure of opening and reading the will (testament)
Following the deceased person’s death, it is important to establish who the heirs are, what their share in the inheritance and title to succession are. This is important not only for the potential heirs themselves, but also for other persons, including creditors, legatees and forced heirs. If we can presume or are certain that the testator left a will, it is important to determine what the content of the will is and whether it was validly drawn up.
Reading of a will by a court
A person who is in possession of a will is legally obligated to file it with a probate court upon learning of the testator’s death. As pointed out, compliance with this obligation is of significant legal importance. Failure to comply therewith by a person holding the will is subject to a liability for the damage caused as well as a fine. The court may also conduct a search for the will by requesting a relevant statement to that effect, and if it learns who the person in possession of the will is, it shall, after hearing this person, issue an order instructing them to file the will within a specified period of time.
The court opens and reads a will when it has proof of the testator’s death, i.e., a death certificate. The persons concerned (incl. successors) are not notified of the date of the opening and reading of the will. If there is more than one will, the court opens and reads all the wills. The existence of other wills is recorded by the court in all of them. A written record is made of the opening and reading of the will. The proceedings do not involve the examination of the will’s validity. The court may not refuse to open and read the will on the ground that it is invalid. The will, together with a written record of the will’s opening and reading, is kept by the probate court.
The same procedure applies to a letter ascertaining the content of an oral will.
Reading of a will by a civil-law notary
A will may also be opened and read by a civil-law notary insofar as it has not already been opened or read. A civil-law notary draws up a written record of the will’s opening and reading and sends a copy thereof to a probate court.
Effects of the reading of a will
The opening and reading if a will is purely formal. Its sole purpose is to disclose the content of the will. Still, the opening and reading of a will give rise to certain legal effects, e.g., a claim to a forced share becomes time-barred five years after the will is read. However, the reading of a will is not a prerequisite for its validity. The probate court shall, insofar as possible, inform the persons concerned by the will’s dispositions and the executor or curator of the inheritance of the opening and the reading of the will.