Nowadays, it is no surprise that our family member or friends permanently reside abroad. This is due to the possibility of taking up more attractive jobs outside the domestic market and the opening of borders and the broadly understood globalization. People who live abroad or in Poland over time accumulate assets that are inheritable. However, what happens, if the testator dies abroad and members of his or her closest family who are eligible heirs live in Poland. The question then arises – How to conduct a foreign inheritance case?
First of all, it is necessary to determine which court has jurisdiction to ascertain the acquisition of estate?
In the event of the death of a Polish citizen residing abroad, it is required to determine whether there is national jurisdiction in matters relating to the acquisition of estate. In civil law, national jurisdiction means the general jurisdiction, id est the competence of the court to adjudicate in civil matters in the area of the court’s jurisdiction. The court’s jurisdiction, on the other hand, is a concept that is limited to determine which of the specific courts in Poland is competent to hear a given case. The consequence of domestic jurisdiction is that Polish courts apply Polish substantive and procedural laws to resolve the case.
National jurisdiction pertains to inheritance cases, if the testator, at his or her decease, was a Polish citizen or had his or her residence or habitual place of residence in the Republic of Poland (Article 1108(1) of the Code of Civil Procedure) and the estate or its significant part is placed in the Republic of Poland (Article 1108(2) of the Code of Civil Procedure). This is the so-called optional jurisdiction which means that the application for ascertainment of acquisition of the estate may be examined by a Polish court or a court of a foreign state, and the filing of a case with one of those courts is decided by potential heirs. In order to accept the Polish jurisdiction, it is sufficient that at least one of the circumstances as referred to in the provision of Article 1108 of the Code of Civil Procedure has occurred.
A dispute between heirs frequently concerns the jurisdiction and the law applicable to the inheritance. Different inheritance laws mean that the estate of a given heir may be larger in one country than in another one. For example, the distribution of the estate between the testator’s spouse and children in most U.S. states is different compared with that in Poland. Joint spousal properties, which are components of the spouses’ assets, are also divided in a different way.
What if the estate includes a property located abroad?
Undoubtedly, Polish courts do not have national jurisdiction in this respect. It should be consistently assumed that the case falls within the exclusive jurisdiction of a court of a foreign country in which the property is located. This is confirmed, for example, by the ruling of the Supreme Court of May 31, 1975 in case No. CZP 78/75, the content of which was repeated in the resolution adopted on April 2, 1982 in case No. CZP 8/82. If the property included in the inheritance is located in the Republic of Poland or the ruling concerns property rights established on the property, then the national jurisdiction of Polish courts over the inheritance case in this respect will be exclusive under Article 1110(2) of the Code of Civil Procedure.
Moreover, in accordance with the resolution of the Supreme Court of May 28, 1969 issued in case No. III CZP 23/69, inheritance proceedings of a foreigner with respect to the real estate property located in Poland are subject to the exclusive jurisdiction of Polish courts. Similarly, inheritance proceedings of a foreigner with respect to the strata title in a housing cooperative in Poland (resolution of the Supreme Court of October 13, 1986, I CR 272/86), as well as an agricultural holding located in Poland (cf. resolution of the Supreme Court of May 28, 1969, III CZP 23/69) that are included in the estate are also subject to the exclusive jurisdiction of Polish courts.
The rule is that the ascertainment of acquisition of the estate should apply to all the assets of the testator and that it is impermissible to ascertain the acquisition of the estate only in respect of part of the assets. However, due to jurisdictional constraints, the estate sometimes needs to be divided into two parts: one part is real estate properties located abroad and the other is real estate properties located in Poland.
What happens, if the testator has made his or her will? Is the will made abroad valid?
The validity and form of a will is absolutely governed by Polish law.
The Civil Code divides wills into ordinary wills (Articles 949-951 of the Civil Code) and privileged wills (Articles 952-954 of the Civil Code). Ordinary wills include as follows:
1) hand-written will (holographic – Article 949 of the Civil Code);
2) allographic will (Article 951 of the Civil Code);
3) will made by a notary public (Article 950 of the Civil Code).
They are characterized by the fact that they may be at any time made by a person having the capacity to perform legal acts. If such a will is not revoked by the testator, it will remain valid regardless of how much time elapses between the day of making the will and the death of the testator. A privileged will may only be made, if there are special circumstances specified by law and its validity is limited in time (Article 955 of the Civil Code). Such a circumstance is the fear of the testator’s imminent death and the impossibility of making a will in the aforesaid forms. Privileged wills comprise an oral will, a will executed on board a ship or an airplane, and a military will.
Therefore, a hand-written (holographic) will made abroad is valid, if it complies with all the formal requirements provided for in the Polish Civil Code. Firstly, the entire text of the will must be handwritten. In the 21st century, when handwriting is almost universally replaced by computer print-outs and in practice this is limited to signatures, this requirement is undoubtedly not in compliance with the common intuition. As a result, there are holographic wills that are computer print-outs signed by the testator only and that cannot be considered as valid hand-written wills. Secondly, the holographic will must be signed. The lack of a normative, unambiguous definition of a signature in Polish law makes this requirement particularly “tricky”.
Thirdly, the hand-written must be dated (date of its execution). However, unlike the previous two requirements, this requirement is not absolute. If, in a specific situation, the functions, the realization of which is to be ensured by affixing a date on the will as referred to in Article 949(2) of the Civil Code, are fulfilled, then, despite the lack of a date, the will is considered valid and effective.
It should be emphasized that a will made by a notary public is also valid, if it complies with the law of the state in which it was written. This means, inter alia, that if, for example, a person who wants to transfer by will a real estate property located in Poland but this person lives in the USA, he or she can go to a local notary public who will write his or her will in accordance with the requirements for wills under the U.S. law in force in that state. Such a will is also valid under Polish law. In this case, a Polish court may also examine the validity of the will executed abroad in the light of the law of the country where it was made. However, it loses this competence when the validity of the will is the subject of proceedings conducted before a foreign court or when it has already been determined there.
The enforceability of wills executed abroad in Poland is regulated by the Act of 4 February 2011 – Private International Law. Pursuant to Article 66a of the Private International Law implemented under the Act of July 24, 2015 amending the Code of Civil Procedure, the Notary Public Law Act and certain other acts (Journal of Laws of 2015, item 1137), that entered into force on August 17, 2015 I indicate that “the law applicable to cases of inheritance” is laid down in Regulation (EU) No. 650/2012 of the European Parliament and of the Council of July 4, 2012 on jurisdiction, applicable law, recognition and enforcement of decisions, acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ EU L 201 of July 27, 2012, p. 107, as amended)”.
Attorney Iwona Smolińska
Attorney Jarosław Kurpiejewski
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