A reserved share is the basic institution of inheritance law, aimed at protecting the closest family members of the testator by guaranteeing the right to a specific part of the estate of the deceased. The reserved share does not limit the freedom of testing, as the testator still enjoys full freedom to dispose of his property. This institution relies on mechanisms only correcting the will of the testator, preventing harmful disposition of property in the event of death.
A claim for a reserved share is pecuniary and in accordance with Art. 991 of the Civil Code is entitled to: the spouse, descendants and parents of the testator. As a rule, the eligible persons are entitled to a reserved share in the amount of half of the inheritance share that would accrue to them in the case of statutory inheritance (J. Ciszewski, J. Knabe [in:] Civil Code. Updated comment, ed. P. Nazaruk, LEX / el. 2022, Art. 991.). It is calculated by multiplying the inheritance share due to the entitled holder by the fraction representing the amount of the reserved share for a given category of persons. At this point, one should note the privileges of minors and persons permanently incapable of work introduced by the legislator. In their case, the reserved portion is 2/3. Undoubtedly, humanitarian reasons and the need to provide special protection to those who, in certain life situations, are deprived of the possibility of earning income, speak for such a distinction.
The concept of a minor does not raise any major doubts, is objective in nature and should be understood in accordance with general principles, which means that a minor is a person who, on the day of opening the inheritance, is under 18 years of age or who has not acquired the status of an adult by contracting a marriage.
Permanent incapacity for work is not a concept defined by the Civil Code. However, it should be assumed that this is a state in which the entitled to a reserved share does not have the capacity to perform any work. The fact of permanent incapacity to work is assessed in a specific case, each time and individually, by the court adjudicating on a reserved share, which should take into account, first of all, provisions in the field of social security (M. Załucki [in:] Civil Code. Comment. Volume VI. Inheritance (art. 922-1087), ed. M. Fras, M. Habdas, Warsaw 2019, art. 991.). These are not the only criteria. According to the judgment of the Court of Appeal in Gdańsk of November 7, 2019, „the court should also consider the degree of disability of the body and the possibility of restoring its full fitness, the possibility of taking up another job or the age of the entitled person” (Judgment of SA in Gdańsk of November 7, 2019, V ACa 229/19, LEX No. 2923427.). Although it cannot be considered that a person with the status of a retired person automatically becomes entitled to a reserved share in a higher amount, however, as indicated by the Court of Appeal in Warsaw in its judgment of 2 December 2016, in the case No. VI ACa 1401/15 „the advanced age of the entitled person, entitling him to take advantage of social security benefits, creates a strong presumption of actual permanent incapacity of that person for work” (Judgment SA in Warsaw of 2 December 2016, VI ACa 1401/15, LEX No. 2191533.). Finally, it should be emphasized that the state of permanent incapacity for work must exist at the moment of opening the estate.
To summarize, we can cite the thesis of the judgment of the Court of Appeal in Poznań, according to which „due to the inability to establish the concept of” permanent incapacity for work „solely on the basis of a linguistic interpretation, reference should be made to the functional interpretation (…)”. Moreover, as indicated in the same judgment, in order to facilitate this type of interpretation, it is worth using the provisions of the Regulation of 12 December 1990 on the conditions of inheritance of farms issued pursuant to Art. 1064 of the Civil Code Although this provision has lost its force, „§3 sec. 1 point 2 of the ordinance indicated that the heirs of a farm are considered to be permanently incapable of work if they have reached the age of – women 60 and men 65, and do not perform permanent work which would constitute their main source of income or were included in the 1st or Group II of the disabled in the manner and on the terms specified in the provisions on universal retirement provision for employees and their families. ” (Judgment of the SA in Poznań of June 30, 2015, I ACa 321/14, LEX No. 2144721.)