Chances are that you have more than once heard a parent to a child (or as the law says: ascendant to descendant) jokingly “threaten” to disinherit him or her, if only for bad grades at school or a partying lifestyle. It is just as likely that the person ‘threatening’ did not know the true meaning of the word disinheritance.
WHAT EXACTLY IS IT?
Let us start by saying that, contrary to this common belief, disinheritance does not mean not including a person in a will.
However, disinheritance is closely linked to the omission in a will of a person who would be called upon to inherit in the event of a statutory succession – the descendants, i.e. children, grandchildren, great-grandchildren, etc., the spouse and the parents of the testator, i.e. the deceased. Such a person is entitled to a reserved share, which you can read more about here
Disinheritance, regulated by Article 1008 of the Civil Code, is nothing other than deprivation of the right to the reserved portion of the estate.
DISINHERITANCE IN PRACTICE
WHO CAN BE DISINHERITED?
We already know that only descendants, spouse and parents may be disinherited. Threatening to disinherit an annoying sibling is therefore completely pointless. Disinheritance can only take place in certain cases, which are generally listed in the aforementioned article 1008. These are situations in which the person entitled to the reserved portion of the estate:
acts persistently against the will of the testator in a manner contrary to the rules of social intercourse;
commits an intentional crime against life, health or freedom, or a gross insult to honour, against the testator or one of his closest persons;
persistently fails to fulfil family obligations towards the testator.
But what does this actually mean? The answer, as is often the case in law, is very non-obvious and practically impossible to give in a concise and accessible manner. The terms used in the provision are vague and the courts must analyse them on a case-by-case basis against the background of the specific situation. Given the vastness of the subject matter, in order to examine the validity of disinheritance in this particular case, it is best to seek the assistance of a professional attorney – an advocate or legal advisor.
HOW CAN A PERSON BE DISINHERITED?
This issue is regulated by Article 1009 of the Civil Code. Disinheritance should be done in a will by indicating the person you want to disinherit and the specific reason for disinheriting. This is very important, because for an effective disinheritance, its reason must be apparent directly from the will. Of course, the reason given must be genuine.
If, in spite of an event justifying disinheritance, the testator has forgiven the person entitled to the reserved portion, he may no longer disinherit him. An exception to this is if the testator lacked capacity, unless the forgiveness was done with sufficient discernment (from legalese: the testator knew who he was forgiving and why).
SINS OF THE FATHERS
It is often forgotten that disinheritance is supposed to constitute a “punishment”, so to speak (in the colloquial sense of the word, of course, and not in the sense of the criminal laws) exclusively for the disinherited person.
In order to protect against the so-called “punishment” of third parties, the legislator has included Article 1011 in the Civil Code, which serves to prevent children from being held responsible for the sins of their parents – or rather, descendants for the sins of ascendants. The descendants of a disinherited person are entitled to a reserved portion, even if the disinherited person is still alive.
Disinheritance, although often used as a humorous argument in family disputes, is an institution both unique and distressing, associated with difficult family relationships. After reading this short article, you already know what it is.
Being disinherited is not the end of the world. Polish law gives you a number of options to counteract unjustified disinheritance. In such a situation, however, it is advisable to enlist the help of a professional who will not only effectively manage your case and help you fight for justice, but, above all, will look at the matter a little from the side, without emotions playing first fiddle, but only with full commitment. Call us if you need effective help in resolving this difficult and uncomfortable situation!