On November 15, 2023, the Act of July 28, 2023 amending the Civil Code and certain other acts will enter into force. The proposed changes include an amendment to the institution of unworthiness of inheritance. The Polish legislator adopted a structure according to which the effects of unworthiness of inheritance do not occur ex lege, but by virtue of a constitutive court judgment, producing ex tunc effects. The discussed institution is based on ethical considerations – a person who engages in negative behavior towards the testator or seeks to have a negative impact on the order of inheritance should not benefit from the inheritance. Recognizing the need to extend the grounds for unworthiness of inheritance to Art. 928§1 introduced two new grounds based on which an heir may be deemed unworthy.
The new point 4 concerns the situation when the potential testator, during the testator’s lifetime, „persistently evaded the performance of the maintenance obligation towards him specified in the amount by a court decision, a settlement concluded before a court or other body or another agreement.” Limiting the proposed premise to cases where the obligation was determined in terms of amount was due to the importance of the consequences of recognizing the heir as unworthy of inheritance. Point 5 considers the circumstances justifying a finding of unworthiness to be „persistent evasion of the obligation to care for the testator, in particular resulting from parental authority, care, acting as a foster parent, the marital obligation of mutual assistance or the obligation of mutual respect and support of the parent and the child.”
The justification for the bill emphasized that the state should respond to unethical behavior of heirs. There cannot be consent to violating particularly valuable personal rights of the testator, such as life, health or dignity. The above-mentioned values have a constitutional status, therefore any actions against them by a person included in the circle of persons entitled to the inheritance must be sanctioned. In this case, the idea is to deprive those who act unethically of the opportunity to obtain any financial benefit from the inheritance. As indicated by the legislator, the changes introduced are a response to the facts that deprive the testator of the opportunity to independently decide on exclusion from inheritance in the will. These included, among others, the lack of capacity to testify under Article 944 of the Civil Code, or the inability to prepare a will due to factual reasons – e.g. when the testator is in a vegetative state. Moreover, what deserves special attention, disinheritance is possible only in relation to a strictly defined group of people. However, those who cannot be disinherited by the testator, even though they may be potential heirs, may also avoid fulfilling the obligation of alimony or custody. Such people include, for example, siblings.
In the author’s opinion, the proposed solutions are intended to make it possible to demand that those heirs be deemed unworthy of inheritance who, under the current legal situation, could evade their obligations of assistance with impunity, despite the real possibility of fulfilling them.