ATTENTION – THIS IS AN AUTOMATIC TRANSLATION
The Supreme Court of Poland, in its ruling of August 31, 2023 (case no. I CSK 6121/22), addressed the issue of the invalidity of an allographic will. According to Article 951 §1 of the Civil Code, an allographic will is a type of will executed in the presence of two witnesses before an authorized official such as a mayor, village head, city president, starosta, marshal of a voivodeship, secretary of a county or municipality, or the head of a civil registry office.
In the case at hand, the testator mistakenly believed that they were executing the will before an authorized person. However, the will was actually executed—contrary to Article 951 §1 Civil Code—before a deputy head of the civil registry office, who lacked the proper authority. Nevertheless, due to the simultaneous presence of three impartial witnesses at the time of making the will, the Supreme Court ruled that it was lawful to convert the will into an oral will under Article 952 of the Civil Code and to recognize it as binding.
In the reasoning, the Court referred to its case law stating that the invalidity of a will provided for in Article 951 Civil Code, caused by the testator’s mistaken belief that the will was made before an authorized official, may be deemed a special circumstance within the meaning of Article 952 §1 Civil Code, due to which fulfilling the ordinary form of the will is impossible or very difficult.
In practice, this means that an allographic will executed before a person lacking proper authority can be recognized as an effective oral will. However, such conversion is only possible when the special circumstance exists and all requirements for a valid oral will are met.
It should be remembered that the burden of proving the existence of this special circumstance lies, according to the allocation of the burden of proof in Article 6 of the Civil Code, on the person seeking to derive legal effects from the will, which usually means the testamentary heir designated in the will, especially in inheritance proceedings.