Have you been left out of your will? Or have you been bequeathed less than you think is fair? In practice, a legacy means that a certain proportion of the succession estate is reserved for the testator’s descendants (children, grandchildren, etc.), the testator’s spouse and the testator’s parents, even if the testator’s will did not include these persons or they were left out in favour of other heirs. The law protects you if you belong to the close circle of the testator’s family, as indicated in Article 991 § 1 of the Civil Code.
Retainer in practice
The rights of the person entitled to a reserved portion serve to give effect to the moral obligations which the testator has towards his relatives, which may sometimes even be contrary to his will. Therefore, the testator does not have the right to choose whether he wishes to award a reserved portion to someone. The entitlement to a reserved portion exists by operation of law.
A reserved portion serves to protect the pecuniary interests of the testator’s close relatives by guaranteeing them, independently of and even against the will of the testator, a pecuniary claim of either two-thirds or one-half of the value of the share of the estate that would have accrued to them if they had inherited in accordance with the law. Two-thirds is due to minor descendants or relatives who are permanently incapacitated. In other cases, half.
The bad news is that no one from the office will take an interest in whether you might be entitled to a reserved share and in what amount. It is necessary to raise the relevant claim yourself against the heirs. The law does not specify a time limit within which the liable heirs must comply with the claim. However, if they evade this obligation, it is necessary to take the matter to court.
This requires bringing an action against the deceased’s heirs. If they are unable to pay the reserved portion of the estate to us, we should then claim from those to whom legacies have been made, then from those who are not heirs but have received a donation from the testator, and from the family foundation whose initial fund has been added to the estate, as well as from those who have received property in connection with the dissolution of the family foundation which has been added to the estate.
The recipient, the family foundation and the person who received property in connection with the dissolution of the family foundation are obliged to settle the claim for a reserved share only to the extent of the enrichment obtained as a result of the donation, the coverage of the founding fund and the receipt of property, respectively. A retention case is in the nature of a claim for the payment of a sum of money needed to cover the retention. We cannot, therefore, in the context of a retention case, claim items included in the estate.
Retainers and wills
The question of a reserved portion is worth bearing in mind when drawing up a will. Even then, it is a good idea to ask yourself who will be entitled to a reserved share and what the mechanism for paying it is to be. As the Supreme Court has pointed out, the testator has three main mechanisms at his disposal to secure his claim for a reserved share: he may make a gift to those entitled to it, appoint them to the estate or make bequests (including legacies) to them.
If the security so provided is at least equal to the value of the inheritance that the beneficiary would have received if he had inherited by law, the reserved portion is to be considered covered. If the security is lower, the beneficiary is entitled to a claim to supplement the reserved portion. And if he or she has not received any addition – a claim for coverage of the reserved portion (judgment of the Civil Chamber of the Supreme Court of 25 January 2022, ref. II CSKP 123/22).
If the testator does not think about these issues in advance, there will unfortunately be a high risk that his relatives may face litigation. Often such disputes about the reserved portion are part of more complex court battles involving, in parallel, for example, a case for the annulment of a will.
Rules for calculating the reserved portion
It is worth remembering that if the person entitled to the reserved portion of the estate is a descendant of the testator, the costs of upbringing and general and professional education incurred by the testator are included in the reserved portion of the estate, provided that such costs exceed the average measure adopted in a given environment (Article 997 of the Civil Code). The determination of this “average measure” should take into account the living conditions of a particular family and the size of the costs incurred in families from the same social environment. Such a procedure must be done on a case-by-case basis and each case should be treated fully on an individual basis, as a one-size-fits-all measure and general guidelines in this respect cannot be established.
Interest for late payment of a reserved share
A debt on account of a reserved share is a monetary debt. And according to Article 481 § 1 of the Civil Code, if a debtor delays in fulfilling a monetary obligation, the creditor may demand interest for the duration of the delay, even if he has not suffered any damage and the delay is a consequence of circumstances for which the debtor is not responsible. Pursuing a retainer before the court may be a lengthy process, so it is worth remembering that if the obligors do not fulfil this claim voluntarily, we are entitled to interest as referred to in Article 481 § 1 of the Civil Code.
Statutory interest for a delay in the fulfilment of a reserved benefit is calculated from the moment the debtor is summoned to pay (judgment of the Court of Appeal in Warsaw – V Civil Division of 19 October 2022, file ref. V ACa 799/21). The exact assessment of what interest we are entitled to is another complex issue that cannot be assessed by a simple calculator. As indicated by the Supreme Court in its judgment of 7 February 2013. (Case No. II CSK 403/12), the date from which the obligor to satisfy the claim for restitution falls into delay should be determined individually in each case, taking into account all circumstances of the particular case.
Payment of the reserved amount in instalments
The necessity to pay off the reserved share may constitute a heavy burden for the heirs. Therefore, it is worth remembering that in particularly justified cases, the court may spread the payment of the awarded benefit into instalments (Article 320 of the Code of Civil Procedure). However, the court will not apply this solution automatically. Indeed, it is obliged in each case to examine the rationale of each of the parties.
Retention claim and succession
A claim for a reserved share passes to an heir of a person entitled to a reserved share only if that heir is among those entitled to a reserved share after the first testator.
Limitation period for a reserved share claim
It is also worth remembering that we cannot wait indefinitely with the filing of a claim for a reserved share. A beneficiary’s claim under the reserved portion of the estate and the claims of the heirs for the reduction of ordinary legacies and instructions are time-barred five years after the declaration of the will.
Prevention of a claim for a reserved share?
Is there any method to prevent statutory heirs from making a claim for a reserved share?
In complex family situations, many people planning the rules of inheritance by their heirs ask themselves this very question. However, the institution of the reserved portion itself has been structured in such a way as to make it impossible to circumvent it and thus guarantee family members a share in the inheritance. The only exception is provided for the institution of disinheritance, which is discussed below.
The courts are rigorous in upholding the entitlement to the reserved portion and are very cautious in examining the grounds for disinheritance. As ruled, inter alia, in the judgment of 25 June 2020. Supreme Court in the Chamber of Extraordinary Control and Public Affairs, the role of the institution of the reserved portion is to realise fundamental constitutional values such as the protection of family, dignity and the right to inherit.
In a democratic state of law, respecting the principle of social justice, it is unacceptable to shape such an order of inheritance where members of the immediate family, including minors or those permanently incapacitated, would be deprived of their livelihood. Thus, a legacy secures the existential needs of the heir’s family members, fulfils the function of alimony, protection, distribution and solidarity (ref. I NSNc 21/20).
What does disinheritance consist in?
Disinheritance is the right of the testator to deprive his or her descendants, spouse or parent of their entitlement to a reserved share if any of them:
- acts persistently against the will of the testator in a manner contrary to the rules of social intercourse;
- has committed an intentional offence against life, health or liberty, or gross contempt of honour, against the testator or one of his closest persons;
- persistently fails to fulfil family obligations towards the testator.
We cannot disinherit an heir (deprive him of his right to a reserved share) just because we no longer like him. Even a complete and long-lasting severance of the emotional and family relationship with the testator does not constitute grounds for disinheriting him or her if it is due solely to the testator’s fault. Indeed, one cannot derive legal consequences for oneself from one’s own unworthy behaviour.
In practice, whether there are grounds for disinheritance is an extremely complex issue which has given rise to a substantial body of case-law in which the courts have analysed in detail the various cases to determine whether they are sufficient to consider an heir unworthy to inherit. Nevertheless, the reason for disinheritance should arise from the will.
The burden of proving the reason for disinheritance in a suit brought by a claimant belonging to the circle of persons entitled to a reserved share lies with the heir sued for its payment. But proving that the failure to fulfil family obligations towards the testator was caused by the testator’s reprehensible attitude lies with the plaintiff (Supreme Court judgment of 9 September 2022, ref. II CSKP 323/22). In the most complex cases, when assessing the grounds for disinheritance, the court may additionally refer to such general concepts as principles of social co-existence or abuse of subjective right. It is worth remembering that if the testator forgives the unworthy or neglecting family ties, he or she may no longer disinherit him or her.