The reserved portion is one of the institutions of inheritance law. Its purpose is to protect the testator’s relatives (i.e. the deceased) who would be entitled to inherit the deceased under the provisions of the Act. The reserved portion applies to situations in which these persons were omitted in the will or, for example, when the testator disposed of most of the property during his lifetime by way of donations to other people.
The value of a reserved share is always expressed in a specific amount of money. It is not possible to demand the release of, for example, certain items from the inheritance. In order to calculate its amount, first of all, pay attention to the provisions of Art. 931 and following of the Civil Code, and then under Art. 991 of the Civil Code, however, one should also remember about numerous special provisions.
Due to the specificity of the institution, which is a reserved share, it can often be treated as an opportunity to obtain money for deceased relatives. Although the law provides for the possibility of disinheriting heirs, pursuant to Art. 1008 of the Civil Code, as well as declaring inheritance unworthy, in accordance with art. 928 of the Civil Code, however, these provisions are not sufficient in all situations. Another basis that could be used to deprive someone of the right to a reserved share is Art. 5 of the Civil Code, pursuant to which:
„You cannot make use of your right that would be contrary to the socio-economic purpose of this right or to the principles of social coexistence. Such an act or omission of the rightholder is not considered to be an exercise of the law and is not protected. „
This provision allows for the assessment of each case and allows to prevent situations, the legal consequences of which would lead to socially unacceptable solutions. The Supreme Court allows the application of this provision also in cases concerning a reserved share, but it may only take place in exceptional situations, in which the above provisions turn out to be insufficient (Decision of the Supreme Court of 27 August 2020, V CSK 173/20, LEX No. 3053969) . The Court of Appeal in Warsaw also allowed the application of Art. 5 to the cases of the reserved portion, emphasizing, however, that these are particularly blatant cases in which it will make it possible to satisfy the public feeling of justice. This court rejected the application of Art. 5 in the case at hand. According to the facts, the testator’s son had been permanently living outside Poland for over 10 years. During this period, he came to Poland twice and visited his mother. They also maintained regular telephone contact. For several months, there was a conflict between the testator and her son over the claims regarding the division of her property, but with time it expired. The deceased’s daughter-in-law had regular contact with her, who also visited her. The son did not attend his mother’s funeral either. In the court’s opinion, these circumstances did not justify the application of Art. 5, because despite the fact that the maintained relations were not close and direct, they were permanent, the conflict quickly passed, and the testator was in direct contact with her son’s wife (Judgment SA in Warsaw of November 10, 2020, V ACa 371/20, LEX no.3105634).