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.
KS