The provisions of the Civil Code create a kind of instrument of protection for a person who has not had time to draw up a will and found himself in a special situation. It is the institution of an oral will, which consists in the fact that if there is a fear of the testator’s imminent death or if due to special circumstances it is impossible or very difficult to maintain the usual form of the will, the testator may declare his last will orally with the presence of at least three witnesses. It would seem that in a situation of an epidemiological threat with the COVID-19 virus, oral wills may be used, not only in a situation where there is a threat of death.
In its decision of 3 December 2010, I CSK 37/10, LEX no. 694228, the Supreme Court specified what other circumstances, apart from the fear of imminent death, may justify the preparation of an oral will. Within the meaning of this provision, special circumstances may include such events as:
- flood,
- interruption of communication,
- epidemic,
- the testator’s stay in an infectious diseases hospital,
- hostilities
The condition is that each of the above-mentioned circumstances makes it impossible or significantly difficult for the testator to draw up an ordinary will. However, it is not required that in these situations the testator should also fear imminent death.
The Supreme Court drew attention to another side of this problem in the resolution of September 23, 1958, 3 CO 17/58, LEX No. 119687. An oral will is usually drawn up in situations where the testator’s imminent death may occur, but there may be cases where Immediate death is justified not only in relation to the testator, but also in relation to people to whom he declares his will. The Supreme Court cited epidemics and hostilities as examples of such dangerous situations. The provision of the act stipulates that the content of a will, if it is not written, may be confirmed by a joint declaration of at least two witnesses. It may happen that during a war or epidemic more than one witness will die and it will be impossible to establish the content of the will. In such a situation, in cases where there is a fear of the imminent death of witnesses, the testator may declare his will to a greater number of witnesses than the statutory minimum.
The views presented complement each other. A testator’s serious illness, life-threatening or sudden deterioration of his health, justifies the preparation of an oral will due to the fear of the testator’s imminent death. In addition, regardless of his state of health, the occurrence of an epidemic may spontaneously justify testing in a special form, if the testator is unable to make an ordinary will or it would be seriously impeded.
KS