Disinheritance in Poland
Disinheritance
In common language, the term “disinheritance” covers all situations in which the testator deprives their heirs of a share in the estate. Polish Civil Code, however, uses this term only with reference to depriving descendants, spouse and parents of the right to a forced share. In this case one can talk about disinheritance in the strict sense. Disinheritance can only be made in a will.
Depriving an heir of their statutory share in the estate is quite common in testate succession. Disinheritance may be implied – the testator will name another person an heir of the entire estate. In may be also put into effect through the so-called negative will. This term refers to a will whose only purpose is to deprive an intestate heir of their share in the inheritance. It may read as follows: “It is my will that my eldest daughter not inherit from me”. In the above situation, the testator’s other children and spouse are entitled to inherit, except for the eldest daughter (the eldest daughter, however, remains entitled to a forced share). The possibility of making a negative will is not explicitly provided for in the Polish law. However, neither case law nor the writings of legal commentators dispute its admissibility.
Reasons for disinheritance
Disinheritance in the strict sense, meaning deprivation of the right to a forced share, is the most severe sanction against an intestate heir who acts in a reprehensible manner. Disinheritance is possible when a forced heir persistently violates the principles of community life against the testator’s will. Another reason is the commission of an intentional crime against life, health or freedom or a gross affront to dignity with respect to the testator or one of the persons closest to them. Disinheritance may also take place when a forced heir persistently neglects their family duties towards the testator. It should be noted that these are family duties, i.e., not only the duty of maintenance, but also, e.g., the duty of care and assistance to an infirm parent. What is important, the reason for disinheritance should stem from the content of the will. In order for the disinheritance to be effective, it is also important for the reason to exist in reality.
Legal effects of disinheritance
The consequence of disinheritance is that the disinherited person loses their right to claim a certain amount of money from the forced share, but also is no longer an heir. Their place is now taken by their descendants. The legal effects of disinheritance do not extend to the disinherited person’s descendants (children, grandchildren and so on). The descendants of a disinherited person are entitled to a forced share even if the testator’s descendant survived the testator.
Act of forgiveness
It should be noted that disinheritance is ineffective if the testator has forgiven the heir. If at the time of forgiving the testator did not have capacity for acts in law, the act of forgiveness is effective if it took place with sufficient understanding of the facts.
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