In its resolution of March 17, 2017 (III CZP 110/16), the Supreme Court confirmed that it is possible to conclude a waiver of the right to a reserved share between a future testator and a qualified statutory heir.
In this case, a legal dispute arose when a deputy notary in Wrocław refused to prepare a waiver of the right to a reserved share between a father and his son. The father argued that the agreement was necessary for free succession planning within the family business, which he wished to pass on to only one child. The deputy notary, in turn, invoked Article 81 of the Notarial Law and Article 1047 of the Civil Code, which prohibits entering into agreements concerning the inheritance of a living person (except for the exceptions provided for in the Act). He found that the right to a reserved share does not arise directly from the right of inheritance, but exists alongside it. A complaint was filed with the District Court in Wrocław regarding the refusal to perform a notarial act. Therefore, the District Court referred a legal question to the Supreme Court:
„In light of the prohibition set forth in Article 1047 of the Civil Code, is it permissible to conclude an agreement on the waiver of the right to a compulsory share between a future testator and a statutory heir entitled to the compulsory share, based on the relevant Article 1048 of the Civil Code?”
In response to this question, the Supreme Court indicated that concluding such an agreement is possible because the right to a compulsory share is a derivative of the right to inheritance, and waiving the compulsory share can be treated as a partial waiver of the right to inheritance. At the same time, the Court emphasized that concluding such an agreement does not adversely affect the rights of the remaining heirs and does not alter their entitlement to the compulsory share.
As the Supreme Court aptly pointed out in the justification of the cited resolution: „A broadly defined inheritance agreement is any agreement that affects inheritance, both constituting the basis for inheritance and excluding inheritance from a given person—a so-called negative inheritance agreement, such as an agreement on waiver of inheritance or a waiver of the right to a compulsory share. Such agreements are generally prohibited, with the exception that Article 1048 of the Civil Code provides for agreements on waiver of inheritance. In this broad sense, an agreement on waiver of inheritance also includes an agreement on waiving the right to a compulsory share.”
The Supreme Court’s resolution is particularly significant in the context of the freedom of wills during the division of the testator’s estate—this type of agreement undoubtedly increases the freedom of succession planning, especially when it comes to family businesses. It should be remembered that such an agreement between the future testator and their potential heir requires the form of a notarial deed, under pain of nullity.