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Are you aware of what disinheritance practically entails? What are its implications for heirs? Before deciding to deprive a statutory heir of inheritance rights, it is crucial to understand the details to ensure that our actions produce the desired legal effects. Find out what conditions must be met and what the legislator states about the institution of disinheritance.
Every testator has the right to deprive their statutory heirs of a share in the estate, which in practice is referred to as disinheritance. Descendants (i.e., children, grandchildren, great-grandchildren), as well as the spouse and parents, lose the right to receive the reserved portion from the deceased. The testator can achieve this solely through a provision in the will. Who can be disinherited? This is possible in three situations:
in the case of persistent conduct contrary to the principles of social coexistence against the will of the testator,
when there is persistent and lasting failure to fulfill family obligations towards the testator,
in the event that a person commits a crime against the health, life, or freedom of the testator or commits an offense against their honor (by word or deed).
It does not concern situations where a one-time behavior occurred, but rather those that are persistent, lasting, and undertaken with full awareness by the perpetrator. The reasons for disinheritance should be derived from the content of the will (in accordance with Article 1009 of the Civil Code). In the first two cases, the described state must exist at the time of drafting the will, while the third situation must occur before the disinheritance in the will. Disinheritance itself cannot be limited by any term or conditioned. It is also important to note that the person committing the aforementioned acts must be aware of their actions. Therefore, certain illnesses or advanced age, which may affect mental state and awareness, do not constitute grounds for disinheritance.
It is important to distinguish between a situation where the testator bequeaths the estate to a specific person in a will and a case where disinheritance occurs. The first option entitles statutory heirs to the reserved portion from the deceased, which they are to receive from the person who inherited the estate. The situation is different when complete disinheritance occurs, as it results in the loss of the right to the reserved portion.
How to challenge disinheritance? If you believe that the testator had no grounds for disinheritance, you can take measures aimed at invalidating the provisions of the will. To this end, you may choose to:
contest the will – you have the right to do so if you have effective evidence that the will was made under duress, threat, in a state of limited or no awareness, or if it does not meet formal requirements;
challenge the disinheritance – again, it will be necessary to present evidence that effectively undermines the arguments cited by the testator;
obtain forgiveness from the testator, which is an act of will on the part of the testator, rendering the disinheritance provisions ineffective. There is no specific form in which the testator should grant forgiveness. Both written and oral forms (with witnesses) are permissible.
A will cannot contain general information, only specific information, as only such arguments form the basis for disinheritance. The will should indicate only the reasons that actually exist, so that the disinherited person cannot challenge them. It is advisable to include information that the testator did not forgive the disinherited person to avoid any doubts. It is important to be aware that not all reasons, which in our opinion constitute a valid basis for disinheritance, will be assessed the same way by the court. Therefore, if you wish to create provisions supported by genuine evidence and arguments, it is advisable to seek professional legal assistance, which will guide you on the right path. The lawyer's task is not to draft provisions using legal language but to assist in evaluating the effectiveness of the evidence. Your primary role is to ensure that the will containing the disinheritance information meets all formal requirements. Without fulfilling them, the entire content of the will, including the disinheritance, may be challenged. It is also crucial to accurately identify the person to be disinherited to avoid any doubts regarding their identity, which could result in the invalidity of the provision.
The testator has the option to specify in the will who is to be excluded from inheritance (such a document is called a negative will). Since disinheritance can only be done in a will, the person affected by it will only learn of this fact after reviewing its content, i.e., after the testator's death. If they decide to challenge the will, they can do so only in court (not with a notary or through administrative means) and pursue their rights during the proceedings. To contest the provisions of the testator's last will, it is advisable to prepare thoroughly for the process. Therefore, legal support may often be necessary to identify the issues worth focusing on to ensure that the submitted evidence is deemed valid by the court. If you have doubts about whether your claims are appropriate, consult a law firm for information. If it turns out that they are not, there may be other evidence that could raise the issue of the will's invalidity, of which you were unaware.
How to draft a disinheritance if the will has already been made? Since utilizing the institution of disinheritance is only possible through a testamentary provision, there is no other way. In this case, a new will must be prepared, which either revokes the entire content of the previous one or makes changes only to certain provisions.
The right to the reserved portion from the deceased belongs to every person within the circle of the testator's closest relatives who did not receive the estate after their death or received significantly less than they should have. This situation arises when the will appoints other persons to the estate than the statutory heirs (or only some of them). The same right applies when the testator, through a donation, bestows the estate on another person. The value of the reserved portion is half of the value of the inheritance share in money.
Disinheritance and the reserved portion – what is the relationship and what does disinheritance cause? The consequence of disinheriting a specific person in a will is the deprivation of their right to claim the estate and the reserved portion. Are you wondering who exactly is affected by its consequences? The legal effects apply only to the person excluded from inheritance and do not affect their descendants (unless they too have been disinherited). At the same time, the share that would have been due to the disinherited person by law passes to their descendants. The disinherited person is treated as if they had not survived the opening of the estate, and therefore cannot participate in the division of assets.
Disinheriting a minor child is possible because there are no legal provisions that could serve as a basis for prohibiting it. The fundamental question is whether the testator will be able to prove that the minor persistently and permanently failed to fulfill family obligations or committed a crime resulting in the loss of the testator's health. What is the conclusion? Although there is no prohibition on disinheriting a minor child, the court's assessment should be that it should not occur, as a person under the age of majority is dependent on the will of their parents and does not deserve disinheritance.
It is also worth mentioning the situation of an illegitimate child. Their disinheritance will be effective only if they have been recognized by the father. If this has not occurred, the illegitimate child is not part of the statutory heirs, meaning they would not receive the estate or the reserved portion from the deceased parent. There is also a way out of this situation. If you are an illegitimate child who has not been recognized by the father and wish to acquire inheritance rights, you must seek the right to inherit through court proceedings.
You already know that the only way to disinherit is to make an appropriate provision (supported by effective evidence) in the will. Consequently, disinheritance after the testator's death is not possible. However, the law provides for the possibility of declaring a person unworthy of inheritance. It can be pronounced against both statutory and testamentary heirs. A request to declare a person unworthy of inheritance can be submitted by anyone with a legal interest in doing so. It is important to observe the deadline, which is one year from the moment we learn of the reason for unworthiness and no later than three years from the opening of the estate. What can be considered reasons for unworthiness of inheritance? It concerns any situation where the heir:
committed a serious crime against the testator;
coerced or prevented the drafting of a will through threat or deceit;
concealed, destroyed, forged, or altered the will.
The court determines whether a specific reason indeed constitutes a basis for declaring a person unworthy of inheritance during the proceedings. To achieve this, it is necessary to prove that each of the aforementioned actions was committed intentionally. In practice, this means that the heir was aware of the consequences of their actions and still decided to carry them out. It turns out that not only a serious crime but also an attempt to commit it is sufficient reason to file a request to declare the heir unworthy of inheritance. It is also important to define what constitutes a serious crime, as the Code does not provide an exact definition (leaving it to the court's assessment). However, a serious crime is most often defined as acts classified as felonies under the Penal Code (punishable by no less than 3 years). Remember the possibility of forgiveness, which prevents the heir from being declared unworthy.
As you can see, disinheritance after the testator's death through testamentary provisions is impossible, but the law allows for another possibility if the evidence proves effective. The consequence of declaring an heir unworthy of inheritance is their exclusion from inheritance, meaning they are treated as if they had not survived the opening of the estate.
We have already mentioned that the decision to disinherit one of the statutory heirs does not affect the rights of other heirs, including the descendants of the disinherited person. Disinheriting a child and grandchildren – what should you know about this relationship? A disinherited child is treated as if they had not survived the opening of the estate, but this has no impact on the situation of grandchildren or great-grandchildren. In such a case, the share of the estate that would have been due to the disinherited person belongs to their descendants, unless the testator decided otherwise regarding their assets. Grandchildren can also claim the reserved portion from the deceased. The testator, however, has the right to disinherit grandchildren, great-grandchildren, and further descendants, provided they have effective evidence. Additionally, the provision of disinheritance along with specific reasons must be included in the will.
What does inheritance in marriage look like in the event of the death of one of the spouses? The statutory provisions state that the spouse and children of the deceased inherit in equal parts, with the provision that the spouse cannot receive less than ¼ of the entire estate. If the assets were acquired during the marital community (i.e., from the moment of marriage until divorce or death), then half of the assets belong to the surviving spouse, and the other half is divided among the heirs. Is it possible to disinherit a wife or husband? Yes, if such information is included in a valid will. The same rules apply as described above. To ensure that the spouse is disinherited, which in practice means no right to the estate or the reserved portion, it is most effective to opt for separation or divorce. Spouses who have a final court decision on the termination of marriage through divorce (or a court ruling on separation) are treated as unrelated persons, and therefore are not statutory heirs. The lack of inheritance rights does not apply to separation that has not been formalized, as the marriage has not ended in accordance with legal provisions. There may be a situation where the death of a spouse occurs during the divorce or before the judgment becomes final. In such a case, according to the provisions, the marriage has not ended. However, there are exceptions even in this situation. A spouse can be disinherited if the other spouse filed for divorce (or separation) due to the fault of the first before death, and their request was justified. In such a case, disinheritance occurs based on a court ruling. It is worth adding that any statutory heir who actually inherits the estate can file a request to exclude the deceased person's spouse from inheritance. It is important to adhere to the deadline, which is a maximum of six months from the day of learning about the opening of the estate, but no later than one year from the opening of the estate.
The legal provisions allow for the disinheritance of any statutory heir, but to do so effectively, it is necessary to present specific arguments and evidence. At the same time, disinheriting a child does not affect their descendants, who have the right to inherit the estate and are entitled to the reserved portion. To thoroughly analyze the situation, explore available solutions, and increase your chances of success in the case (both in terms of disinheritance and challenging the will's provisions), it is advisable to seek professional legal assistance.
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