Inheritance - legal advice

Inheritance law

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September 2020

A third party within the meaning of Art. 1028 of the Civil Code

Article 1028 of the Civil Code tells about what will happen if a right belonging to the estate is disposed of by an unauthorized person. This provision applies to a person who has obtained a declaration of inheritance or an inheritance certificate, but is not in fact an heir, and disposes of the right belonging to the inheritance to a third party. If, by adopting a law, a third party acts in good faith, he acquires the right or is released from the obligation.

Art. 1028 of the Civil Code is one of the few statutory exceptions to the principle that you cannot dispose of someone else's right (nemo plus iuris in alium transferre potest quam ipse habet). It is emphasized that the purpose of this solution is the protection of legal transactions, combined with the principle of protection of a third party acting in good faith and in trust in official documents, such as copies of court decisions or excerpts of registered certificates of succession.

The Supreme Court in the resolution of July 25, 2019, file ref. III CZP 12/19 undertook to consider the subjective scope of Art. 1028 of the Civil Code, in particular whether it also applies to acts between persons who belong to the circle of statutory heirs, but who are temporary heirs. Such a situation may take place, as in the cited case, in the case of the birth of a live child conceived at the time of the inheritance opening or a forged will.

In the court's opinion, a buyer belonging to the circle of statutory heirs cannot be considered a third party within the meaning of this provision. This means that a person belonging to the circle of statutory heirs to whom the heir, who has confirmed the acquisition of the inheritance, disposed of the right belonging to the inheritance, did not acquire this right if someone else is the actual heir.

In the opinion of the court, taking into account the exceptional circumstances, the lack of exclusivity of the legitimate character of the ascertainment of inheritance acquisition and the registered deed of inheritance certification in relations between the heirs, it should be concluded that art. 1028 of the Civil Code According to the Supreme Court, protection of the right of inheritance, as a constitutionally protected value, must be of a real nature.


August 2020

Sale of a share in an item belonging to the estate.

If you acquire an interest in an inheritance, you may lose it. This may happen even when the seller has a court decision confirming the acquisition of the inheritance and is entered in the land and mortgage register.

According to art. 1036 of the Civil Code, the heir may, with the consent of the remaining heirs, dispose of (e.g., sell) a share in an item belonging to the estate. If any of the other heirs do not consent, the regulation is ineffective insofar as it would infringe the rights of the heir under the provisions on the division of the estate. We are dealing here with the so-called relative ineffectiveness. This means that the contract is valid, but may be ineffective against the heir who has not agreed to sell the share. He may then claim a division of the estate as if there was no share purchase agreement at all.

Such a right arises only if the rights of the heir who did not express his consent were violated. For example, if the heir who has made the sale has received donations during his lifetime in excess of his share of the inheritance, then it should be omitted from the division of the estate. Then the heirs who did not consent should receive the entire inheritance, and the acquirer of the share in the property belonging to the inheritance will lose his share. He may possibly pursue claims against the vendor under the warranty for legal defects.

July 2020

Inheritance of a claim for compensation

In a judgment of November 28, 2019 (III CSK 284/17), the Supreme Court confirmed the prohibition of inheriting a claim for compensation, except if the testator had already died during the redress process. The regulation provided for in art. 445 § 3 of the Civil Code. is a lex specialis in relation to art. 922 of the Civil Code The possibility of inheriting the claim results from the assumption that the death of the injured party during the trial should not bring benefits to the person responsible. As an exception to the general rule provided for in Article 922 of the Civil Code, art. 445 § 3 of the Civil Code. it must be interpreted narrowly, and the compensatory function in this respect must be understood broadly. The claim that passed to the heirs becomes a specific claim, which is part of the inheritance.

June 2020

Lease agreement and inheritance

In accordance with art. 691 § 1 and 2 of the Civil Code, in the event of the death of a tenant of a dwelling, the tenancy of the premises shall commence if they have lived permanently with the tenant until his death: a spouse who is not a co-tenant of the premises,

  • the children of the tenant and his spouse,
  • other persons towards whom the tenant was obliged to provide maintenance,
  • a person who was actually living together with the tenant.

The Supreme Court in its judgment of 4 December 2019 (I CSK 506/18) stated that the above-mentioned stepping into the lease is completely independent of inheritance rights. The law arising from the aforementioned provision is intended to protect close relatives to the current tenant of the premises, who lived with him until the time of death, including the tenant's children. The exercise of this right occurs when the entitled persons are not at the same time heirs or fall into this category, but for various reasons they do not exercise inheritance rights.

May 2020

Who can be deprived of the reserved share?

Pursuant to the provisions of the Civil Code, persons who are called to inherit statutory rights have certain rights in situations where they have not been mentioned in the will. They are then entitled to half the value of the inheritance share that would fall to them in the event of statutory inheritance. However, if the entitled person is permanently incapable of work or if the minor is entitled to the descendant, the amount due shall be increased to two-thirds of the value of that share.

This regulation is in line with the principle that no one can, in the event of his death, dispose of his property completely freely, apart from his loved ones. It can be said that the testator has a moral obligation towards his relatives. The purpose of such regulation is to protect the family against the decisions of the testator and is to serve a fair distribution of the estate.

However, the Civil Code also regulates the situation in which a close relative will be deprived of his full share due to his unworthy behavior. The preservation may be reduced and you will not even belong to a relative who:

  • intentionally committed a serious crime against the testator or one of his closest relatives;
  • tricked or threatened the testator to draw up or revoke a will or in the same way prevented him from doing one of these activities;
  • intentionally hid or destroyed the testator's will, forged or rewritten his will, or knowingly used a will by another person forged or forged
  • against the will of the testator, he acted persistently in a manner contrary to the principles of social coexistence;
  • persistently failed to fulfill his family obligations towards the testator.

The role of the court is then to balance the property interests of the testator's immediate family member and the breach of social coexistence. In a situation where nobody has requested in time to deprive a reserved share of those entitled who have met any of the above conditions, it is possible to apply the clause of the rules of social coexistence contained in art. 5 of the Civil Code.

In its judgment of June 16, 2016, V CSK 625/15, the Supreme Court stated that it cannot be concluded that determining the premises of unworthiness of inheritance and disinheritance excludes the admissibility of a reduction of the reserved share due to the behavior contrary to the rules of social co-existence of the person entitled to a reserved share of the testator. In such situations, only by invoking the principles of social coexistence allows one to satisfy the public's sense of justice, opposed to the award of full debts, and, exceptionally, a reserved share in general to a person on whom there are grounds to consider her unworthy of inheritance or there were grounds for her disinheritance. At the same time, the jurisprudence recognizes that the Court should not substitute for the will of the deceased person and by applying Article 5 of the Civil Code derive from the relationship of the legal heir to the testator applications that would lead to the same effect as if disinheritance had occurred.

As an example in which the application of this provision is possible, one can indicate a situation in which a child entitled to a reserved share did not look after the testator during his lifetime, but was not disinherited by him. Another example is the situation of ill-treatment of the father by his son, not being interested in his illness, absence at the funeral (Supreme Court judgment reference number V CSK 625/15).

Particularly noteworthy is the relationship between authorized holders and heirs. According to the case-law (judgment of the Court of Appeal in Szczecin of 27 March 2019, reference number I ACa 825/18), these relations need to be taken into account, but only as an additional one. Due to this, the difficult financial situation of the heir may be the basis for disregarding a request for a reserved share under Art. 5 of the Civil Code. When for a person included in a will this decline would be the only property, and he does not yet achieve his own income, the holder of the reserved share cannot claim it on the basis of social coexistence. Pursuant to the judgment of the District Court in Toruń (case file No. VIII Ca 78/16), the court may refuse to grant a request for a reserved share due to the principles of social coexistence may take place when a different decision would result in the heir being obliged to pay exceptional reserved shares ailments in the material sphere.

April 2020

Rejection of inheritance after the deadline

In connection with the frequent taking of loans today, we can face the situation of the so-called unwanted inheritance that includes only debts or exceeds the value of the assets left behind. Often the family of the deceased is not even aware that he left behind debts falling into the estate or does not realize their height.

The statutory and testamentary heir should, within 6 months of becoming aware of the title of his or her appointment to the estate, make a statement whether the estate is accepted or rejected. After 6 months, in the absence of a response from the heir, the inheritance is accepted by law.

The six-month time limit for the heir to be filed cannot be extended. An heir who, under the influence of an error or threat made a defective statement or did not make any statement within this period, may evade legal consequences and make a valid statement effectively - however, this applies only in exceptional cases.

In a decision of the Supreme Court of November 26, 2019, the court considered the situation of two adult children who wanted to reject the inheritance of their deceased father. The decline consisted of debts of 250,000. zł. They did it after the deadline, because they were not aware of the existence of such a high debt - they only knew about part of it. In this case, rejection of an inheritance requires court approval.

It must be proved before the court that it was actually acting under the influence of error or threat. It is not possible to explain yourself by not knowing the law.

In the jurisprudence of the Supreme Court, it is assumed that a legally relevant error as to the subject of the estate may be said when the lack of knowledge about the actual state of the estate is not the result of a lack of diligence on the part of the heir in determining it, when "the error is justified by the circumstances of the case". The assessment in this regard should be made on the basis of the circumstances of the particular case and take into account the average, rather not very high, legal awareness of the public.

The Supreme Court accepted the position of the applicant children. He stated that from the point of view of the decision to accept or reject an inheritance, knowledge of the whole of inheritance debts and their size may be important, and knowledge of only some of them, especially if they are covered by inheritance assets, does not justify the expectation that the heir "prophylactically" will reject the inheritance.

March 2020

Can the license to sell alcohol be inherited?

This question was answered by the Provincial Administrative Court in Gliwice in a judgment of November 28, 2019 (III SA / Gl 886/19).

Mayor C. granted entrepreneur R. G., who is a sole proprietorship, permission to sell and serve alcoholic beverages. R. G paid to the commune's account the fee due for the whole year of using permits.

Subsequently, R. G. submitted a declaration of resignation from the permission to sell alcoholic beverages and at the same time waived her right to appeal against the organ's decision. The mayor therefore decided to terminate these permits.

R. G. died and her heir claimed a refund of overpaid fees because R.G. paid the fee for the whole year and waived the permit before its expiry.

The court in Gliwice emphasized that there is no doubt that the permission to sell alcoholic beverages is closely related to the entity that received the authorization. Due to this, it is also not subject to inheritance. By the decision issued by the mayor, the granted to R.G. expired. permits cannot be inherited because of this.

In accordance with art. 922 § 2 of the Civil Code, the inheritance does not include the rights and obligations of the deceased closely related to his person, as well as the rights that upon his death pass to designated persons regardless of whether they are heirs. It was undoubtedly for the court that the rights and obligations arising from administrative decisions issued to R. G. authorizing the sale of alcohol were closely related to her person.

The inheritance is the total of the property rights and obligations of the deceased. As a rule, it does not include property rights and obligations of a public law nature, governed by the provisions of legal departments other than civil law, in particular administrative or tax law. The exception confirming the rule is the taxpayer's right to a refund of excess tax. The fees paid by R.G were undoubtedly public-law in nature.

It follows from this judgment that it is not possible to inherit the license to sell alcoholic beverages.

Salary from the legatee.

According to the jurisprudence of the Supreme Court, the heirs are entitled to a claim for remuneration for the legatee's use of an item marked as to the identity, which is the subject of the ordinary record, for the period until the claim for the record is due (resolution of 27 August 2015 - III CZP 46/15). This applies if the subject of the subscription was already in the possession of the legatee before the will was announced. It is only when the will is announced that the legatee may demand that the entry be made (Article 970 of the Civil Code).

It was disputed, however, whether the period for which the legatee has to settle ends when the court dispute is over or when the legatee makes a request to subscribe. The Supreme Court in a decision of 10 July 2019 (reference number V CSK 228/18) confirmed that heirs may demand remuneration from the legatee for using the subject of the subscription, but only until he claims it. The legatee cannot bear the consequences of too long a process of issuing the subject of registration

Ref. No. III CZP 46/15

Rejection of the inheritance does not transfer the right to a reserved share to the child.

The Supreme Court has established that in the event of testamentary inheritance, only specific persons - specific statutory heirs - are entitled to the reserved portion. They cannot "transfer" the reserved portion to their children by making a declaration of rejection. This could, in certain cases, give rise to unjustified privilege of these children over the will. It is known that minors may demand a reserved share of 2/3 of their inheritance share, while their adult parent only 1/2 of the inheritance share.

Ref. No. III CZP 23/19