Disinheritance: As a form of deprivation of custody

Disinheritance is 1 of the most crucial and complex issues of inheritance law. It is crucial to realize that the omission of closest household members in the will does not automatically mean disinheriting them. Even in the event of omission, the spouse and children of the heir may be granted a retainer, which is simply a kind of protection for the closest members of the deceased family.

Grounds for disinheriting

Disinheritance may be carried out only in the will, in accordance with Article 1008 of the civilian Code. Disinheritance, however, is not an act of any kind; in order to be effective, there must be specific, valid reasons as set out in Article 1008 of the civilian Code. These reasons are:

1. Persistent conduct contrary to the principles of social coexistence against the will of the heir;
2. to commit a criminal offence against life, wellness or freedom or gross images of worship against the heir or 1 of his closest persons;
3. Persistent failure to fulfill household responsibilities with the heir.

Formal disinheritance requirements

As it follows from the caselaw of the court that disinheritment should be effective, the heir should describe in his will the circumstantial behaviour of the individual entitled to keep the statutory conditions. It is not adequate to usage general wording without indicating circumstantial behaviour or responsibilities. The reason for disinheriting should be specifically formulated.

Judgment of the Court of Appeal in Warsaw

An example of how to realize the grounds for disinheritment is the judgement of the Court of Appeal in Warsaw, the signature of Act V ACa 174/20. That court held that the persistent failure to comply with household obligations vis-à-vis the heir, which is the basis for disinheriting within the meaning of Article 1008(1) and (3) of the Code, consists of the long-term or repeated neglecting of the material and emotional needs of the heir or the conduct in a manner contrary to the principles of social coexistence. This means that the behaviour of the rightholder must be objectively reprimanded.

Principles of social coexistence

In the context of the grounds for persistent conduct in a manner contrary to the principles of social co-existence against the will of the heir, the courts explain that the principles of social coexistence should be understood as fundamental principles of ethical and fair conduct.

Objective assessment of disinheritance

It is crucial that the existence of disputes or household misunderstandings cannot be the basis for effective disinheritance. The assessment of the condition of disinheritance must not be based solely on the subjective feelings of the heir, but must take an nonsubjective dimension. Disinheritance can be called into question in the case of custody payment.

Summary

Disinheritance is simply a serious decision which must be decently motivated and compatible with the law. It is crucial to describe in item in the will the circumstantial actions of the individual entitled to the leave, which justify disinheritment. Each case requires individual analysis and assessment of compliance with statutory conditions, which frequently requires the support of specialists in the area of inheritance law.

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Daniel Głogowski

Expert in his field – Publicist, author and social activist. The first articles were published in 1999 for global publishers. For more than 30 years, he has gained his experience through cooperation with the largest editorial offices. In his articles, he seeks to address controversial topics and present first viewpoints that allowed for a deeper knowing of the issues discussed.