Anyone with full legal capacity can take care of what happens to their estate after death. A will is sufficient for this. However, future testators must bear in mind that if they do not comply with certain requirements when drawing up a will, their last will may be challenged in court. How can a will be drafted to avoid this risk?
Our offer
The assistance of a lawyer in drawing up a will will secure the correct execution of the testator’s will, give us confidence that all the formalities will be carried out correctly and that the will will is legal.
We offer our clients:
- Preparation of the content of the will
- Revocation of the will
- Assistance in contesting a will where this is legally permissible
- Legal documentation of the renunciation of an inheritance and documentation of the disposal of an inheritance (once an heir has accepted the inheritance)
- Handling court cases on:
- securing the inheritance,
- Taking inventory of the inheritance,
- rejection of the succession,
- declaring a will and ordering the administration of a will,
- administering the estate uncontested
- the disclosure of succession property;
- declaring the succession
- division of the estate
as well as other activities related to succession planning in the broad sense, including, inter alia
- Establishing a family foundation,
- Determining issues relating to the retainer that certain heirs may be entitled to,
- Preparing and reviewing the effectiveness of disinheritance documentation.
Notarisation of the will
The testator may make a will by writing it entirely in his or her own handwriting, date it and sign it. He or she may also write it in the form of a notarial deed, which is the recommended solution. As the case law aptly points out, the rules on the form of a notarial deed are extremely strict and formalised, with the result that this form of will is considered to be the one that most fully safeguards the testator’s actual will.
The fact that it is drawn up in the form of a notarial deed also has a probative force equal to that of an official document is not without significance. Under Article 244 of the Code of Civil Procedure, a document of this type enjoys the presumption of authenticity and the presumption of truthfulness, i.e. the truthfulness of what has been officially certified therein.
However, a notarial will does not constitute irrefutable evidence, as the presumptions arising from Article 244 of the Code of Civil Procedure may be rebutted. Therefore, it cannot automatically be assumed that a document drawn up in the form of a notarial deed is always more reliable and somehow superior to other forms of wills.
The court should approach it with criticism, as it may be the case that a notarised will is invalid due to errors or shortcomings. The defects that render a notarial will invalid are those that cast doubt on the veracity of the events described in the document [so: decision of the Suwałki Regional Court of 22 March 2017, I Ca 59/17].
How to resolve doubts
A manifestation of the testator’s will not expressed in the form prescribed by law is not a will and does not have the effects prescribed by the law of succession for a will. In one of the most bizarre testamentary cases before the Supreme Court, the court held that a statement by the testator in the course of a conversation with a randomly assembled group of people that he or she wishes to leave property to his or her grandchildren cannot be regarded as a ‘will’ [thus: decision of the Supreme Court – Civil Chamber of 6 May 1999, II CKN 307/98].
In order to determine whether, when making a particular declaration, the testator intended to draw up a will (animus testandi) or whether he was merely making statements about his future succession plans, the content of his declaration of intent and the wording used to express it must be carefully analysed.
The circumstances in which the statement was made and the testator’s behaviour after making it are also important [so: decision of the Supreme Court – Civil Chamber of 29 June 2010, III CSK 293/09].
Willingness to testate, or animus testandi, means that the will-maker is aware that the action he or she is taking constitutes the making of a will and has the intention of creating a will with specific content by performing the relevant actions.
As pointed out by the Regional Court in Łódź, in order for a specific legal instrument to be recognised as a will, certain formal requirements for the validity of this act of last will must be met. Examples of actions that may be considered as an act of last will are:
- drafting a document that includes all or part of an estate without naming an heir;
- drafting a document which excludes one or more legal heirs (so-called negative will);
- drafting a document which contains only provisions on the custody of minor children;
- drafting a document that cancels a previously drafted will.
Wills and the signature of an attorney?
A will cannot be made or revoked by a representative.
What if the testator signed the will with a pseudonym?
If the person who writes the will has used a pseudonym in everyday life and legal dealings and signs the will with such a pseudonym (instead of his or her real name and surname), such a signature is deemed to meet the requirement of signing the will in his or her own handwriting pursuant to Article 949 § 1 of the Civil Code. [so: judgment of the Supreme Court – Civil Chamber of 23 October 2020, III CSK 134/18].
In another decision, the Supreme Court held that for the validity of a handwritten will contained in a letter it is sufficient to sign it only with a first name, if the personal relationship of the testator and the addressee justifies such a signature [so: Order of the Supreme Court – Civil Chamber of 9 December 2008, II CSK 514/08].
What if the will document is lost?
Only the original will is a will within the meaning of the Civil Code (Article 941 of the Civil Code). A copy of an ordinary will, even if drawn up by the testator’s own hand, is not a will. Pursuant to the law on notaries, however, an extract of a will drawn up in the form of a notarial deed (art. 950 KC) is equivalent to the original [so: decision of the Supreme Court – Civil Chamber of 30 June 1972, I CR 403/72].
The content of a lost handwritten will may be established in court proceedings by any means of evidence permitted by law. However, as the Supreme Court has emphasised, it is necessary to be particularly cautious and thorough in such a case [so: decision of the Supreme Court – Civil Chamber of 20 July 2005, II CK 2/05].
The reconstructed will retains the legal force of the original handwritten will. This is because the validity and effectiveness of a will is affected by its preparation in accordance with the provisions of the law, while the lack of physical existence of the document containing the testator’s declaration remains irrelevant [so: judgment of the Court of Appeal in Warsaw – First Civil Division of 5 February 2015, I ACa 1169/14].
What if the testator made several wills?
Where a testator creates a new will without indicating in it that he or she wishes to revoke the previous one, only those provisions of the previous will that are not consistent with the content of the new will are revoked. The Court of Appeal in Poznań explained that this rule is due to the fact that an older last will is not automatically revoked by a newer will if the newer will does not contain an explicit revocation statement.
The legislator assumes that if the testator wished to revoke the old will, he could do so by means of a revocation clause. However, if he created a new will without such a statement, it means that he only wanted to supplement the dispositions contained in the old will. The problem only arises if the provisions of the two wills are mutually exclusive.
If someone has written several identical wills on the same or different dates, each of them is exactly equally valid.
If a person did not make a new will, but wrote down a statement indicating which of several wills is the last, such a statement may be considered sufficient to determine the order of the wills.
Revoking one of these wills does not affect the validity of the others, unless the context indicates otherwise. For example, by revoking one of the wills, it cannot be inferred that the testator also wished to revoke the other wills in this way, unless this is apparent from the specific circumstances.
What if we are unable to determine the order of the wills?
The Supreme Court has held that the appointment of the same heir in several wills made on the same day is valid despite the impossibility of determining their order and the difference in bequests [so: resolution of the Supreme Court – Civil Chamber of 30 September 1971, III CZP 56/71].
What if the will needs supplementing?
A will must be interpreted in such a way as to ensure that the testator’s (legator’s) will is embodied as fully as possible, and if a will can be interpreted in different ways, an interpretation must be adopted which allows its dispositions to be upheld and given a reasonable content.
However, as the Court of Appeal in Katowice pointed out, the interpretation of a will may not be aimed at giving it content contrary to its literal wording, as determined by the linguistic interpretation which is of fundamental importance.
On the other hand, there is no legal possibility of supplementing the content of a will by including provisions that were not included in its content. The prohibition on supplementing the will does not exclude the possibility of determining the heir by means of the rules of testamentary interpretation referred to in Article 948(2) of the Civil Code, referred to in doctrine, in view of its purpose of giving the testamentary disposition a reasonable content, as a supplementary interpretation, which should be distinguished from the mere supplementation of that act [so: decision of the Supreme Court – Civil Chamber of 11 August 2010, I CSK 62/10].
Frequently asked questions
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