Abstract
A will is the sole instrument through which an individual may impose, upon the disposition of property at death, a structure that diverges from the default ordering of statutory succession. Yet the privilege is conditioned upon strict formal compliance — and most disputes arising before the succession court concern not what the testator intended, but whether that intention was articulated in a form which the law is prepared to enforce. This compendium examines the doctrinal architecture of Polish testamentary law: the formal requirements, the doctrine of animus testandi, the treatment of multiple instruments, the law of lost wills, and the boundaries of judicial construction. It then situates the will within the broader framework of succession planning — encompassing the family foundation (fundacja rodzinna), the forced share (zachowek), disinheritance, and cross-border estate considerations under Regulation (EU) No 650/2012.
I. The Centrality of Form
The proposition that form is mere ceremony has, in succession law, no purchase. It is precisely because the testator can no longer authenticate, qualify, or correct the instrument that formal requirements assume their constitutive function: they substitute, ex ante, for the impossibility of ex post clarification.
A. The Holographic Will
Polish law permits a testator to execute a will by writing it entirely in his or her own hand, dating it, and signing it (Article 949 § 1 of the Civil Code). The three elements — autograph script, date, and signature — are deceptively simple. Each generates its own jurisprudence.
It bears emphasis that the signature need not take the form of the testator’s full name. The Supreme Court has held that where an individual habitually used a pseudonym in daily life and legal transactions, a signature in that pseudonym satisfies the autograph requirement (judgment of 23 October 2020, III CSK 134/18). In an earlier decision, the Court accepted that, for the validity of a holographic will contained in a letter, signature by first name alone may suffice where the personal relationship between testator and addressee justifies that form (decision of 9 December 2008, II CSK 514/08).
The latitude extended to the signature does not, however, attenuate other formal requirements. A will produced by typewriter or word processor, dictated to another, or signed by another’s hand falls into absolute nullity.
B. The Notarial Will
The notarial will — executed in the form of a notarial deed — is the form which we recommend in the vast majority of cases. As Polish jurisprudence has observed, the rules governing notarial form are exceptionally rigorous and formalised, with the consequence that this form of will is regarded as the one which most fully secures the testator’s actual intention.
A notarial deed possesses the evidentiary weight of an official document. Pursuant to Article 244 of the Code of Civil Procedure, it benefits from a presumption of authenticity and a presumption of veracity as to the matters officially attested therein.
It would, however, be incautious to treat the notarial will as conclusive. The presumptions arising under Article 244 of the Code of Civil Procedure are rebuttable, and the succession court is bound to approach such instruments with appropriate scepticism — for it sometimes occurs that a notarial will proves invalid on grounds of error or omission. The defects which produce invalidity are those which cast doubt upon the truthfulness of the events recorded in the instrument (decision of the Regional Court in Suwałki of 22 March 2017, I Ca 59/17).
In practice, this means that the notarial will, too, may be set aside — most commonly upon a showing that the testator lacked, at the moment of execution, the requisite consciousness or freedom of decision (Article 945 § 1(1) of the Civil Code).
C. Special Forms
The Civil Code further recognises oral, travel, and military wills. Each is conditioned upon supplementary prerequisites — chiefly the existence of an apprehension of imminent death or of circumstances rendering ordinary forms objectively unavailable. Practice suggests that special-form wills are the most vulnerable to invalidation, and we counsel their use only when the ordinary forms are genuinely inaccessible.
II. Animus Testandi — The Doctrine of Testamentary Intent
A. The Internal Test
A manifestation of the testator’s will not expressed in the form prescribed by law is not a will, and produces none of the effects which succession law attaches to a will. Yet adherence to form, while necessary, is not sufficient. There must additionally exist animus testandi — the intention to execute a will, distinguished from a mere expression of future testamentary plans.
The point is illustrated by what is perhaps the most curious of Polish succession decisions. The Supreme Court declined to recognise as a will a remark made by the testator, in the course of conversation with persons who happened to be present, that he wished to leave his property to his grandchildren (decision of 6 May 1999, II CKN 307/98). The instructive force of the case is doctrinal: the wish to leave property is not yet a will; a will arises only when the testator undertakes a conscious dispositive act, of determinate content.
To establish whether a particular utterance was intended as testamentary or as merely declarative of future plans, the Supreme Court has required a careful analysis of the substance of the declaration and the formulations employed, together with the circumstances in which it was made and the testator’s subsequent conduct (decision of 29 June 2010, III CSK 293/09).
B. What May Constitute a Will
The Regional Court in Łódź has identified, as instruments which — provided that formal requirements are observed — may qualify as testamentary acts:
- a document covering all or part of the estate without identifying a successor;
- a document excluding one or more statutory heirs (the so-called negative will);
- a document containing only provisions concerning the guardianship of minor children;
- a document revoking a prior will.
The last category — the revoking will — merits emphasis. It may operate in isolation, without designating a new successor, and produce as its effect the exclusive application of the statutory order of succession.
C. The Personal Character of Testamentary Disposition
A will may be executed neither, nor revoked, by a representative. The principle expresses the strictly personal nature of testamentary disposition: a power of attorney, however expansive in its terms, has no purchase in the testamentary sphere.
III. Multiple Wills and the Question of Priority
A. The Rule of Coexistence
It is a widely held but mistaken supposition that the execution of a new will automatically revokes the prior. Where the testator executes a new instrument without an express declaration of revocation, only those provisions of the prior will which are inconsistent with the new are revoked (Article 947 of the Civil Code).
The Court of Appeal in Poznań has articulated the underlying logic: had the testator wished to revoke the prior will in its entirety, the revocation could have been effected by an explicit clause. The omission must therefore be read as evidencing an intention to supplement, rather than to displace, the earlier disposition. Conflict arises only where the provisions of the two instruments are mutually exclusive.
The practical consequence is a substantive risk. A testator who, believing the new will to be definitive, neither destroys the prior instrument nor includes a clause of revocation may in fact bequeath a fragmented arrangement in which the provisions of multiple wills coexist and require judicial reconciliation.
B. Wills Executed on the Same Day
The Supreme Court has held that the appointment of the same heir in several wills executed on the same day remains valid notwithstanding the impossibility of establishing their order, and notwithstanding differences as to specific bequests (resolution of 30 September 1971, III CZP 56/71). Where a testator executes multiple identical wills, on the same date or on different dates, each is precisely as valid as any other.
Where the testator has not executed a new will but has produced a separate declaration identifying which of several existing wills is the last, that declaration may be sufficient to establish their priority.
C. The Effect of Revoking One of Several Wills
The revocation of a single will does not affect the validity of the remaining instruments — unless circumstances suggest otherwise. In particular, the revocation of one instrument does not, of itself, support the inference that the testator wished thereby to revoke the others. The interpretive field is broad, and it is in this field that the actual will of the testator most often comes to be determined.
IV. The Lost Will
For the purposes of the Civil Code, only the original of a will constitutes a will (Article 941). A copy of an ordinary will, even one made by the testator in his or her own hand, is not a will. By contrast, under the Law on Notaries, an extract of a will made in the form of a notarial deed (Article 950 of the Civil Code) is treated as equivalent to the original (decision of the Supreme Court of 30 June 1972, I CR 403/72).
What, then, of the holographic original which has been lost? The content of a lost holographic will may be established in judicial proceedings by any means of evidence admissible in law — testimony, the testator’s correspondence, expert opinion. The Supreme Court has, however, insisted upon the exercise of particular caution and circumspection in such matters (decision of 20 July 2005, II CK 2/05).
The reconstructed will retains the legal force of the original. As the Court of Appeal in Warsaw has held, the validity and effectiveness of a will depend upon its execution in conformity with statutory requirements; the absence of physical existence of the document containing the testator’s declaration is, as such, immaterial (judgment of 5 February 2015, I ACa 1169/14).
Reconstruction proceedings rank among the most demanding in succession practice. The burden of proof falls upon the party invoking the content of the lost instrument, and the court appraises the assembled material with the highest degree of caution — a stance which is doctrinally justified, since a will is the unique legal act whose author cannot, by definition, return to confirm or correct it.
V. The Limits of Judicial Construction
A will is to be construed so as to give the fullest possible effect to the testator’s intention. Where multiple readings are open, the construction which preserves the dispositions in force and lends them reasonable content is to be preferred (Article 948 of the Civil Code).
A limit, however, exists which construction may not transgress. The Court of Appeal in Katowice has held that the construction of a will may not extend to imparting to it a meaning contrary to its literal terms, ascertained by means of the linguistic interpretation which is of fundamental importance. There exists no legal basis for supplementing the content of a will by including provisions which the testator did not in fact express.
Doctrine, in this connection, distinguishes:
- supplementary construction — permissible; it consists in determining the heir by application of the rules of construction set forth in Article 948 § 2 of the Civil Code, with a view to giving testamentary disposition reasonable content (decision of the Supreme Court of 11 August 2010, I CSK 62/10);
- supplementation of the will — impermissible; it would consist in adding to the will dispositions which the testator never expressed at all.
The practical implication is fundamental. Where a will fails to address a particular asset or a particular individual, the court has no competence to supply the absent content — even where the totality of the circumstances suggests that the testator may have wished otherwise. What was not written is not a disposition.
VI. The Will Within Estate Planning
The will is the central — but not the sole — instrument of succession planning. In our practice, the execution of a will typically forms a component of a broader project, which may also encompass:
- the family foundation (fundacja rodzinna) — introduced by the Act of 26 January 2023, an instrument permitting intergenerational management of family wealth and mitigating risks associated with statutory succession and forced-share claims;
- the forced share (zachowek) — an institution which the will alone cannot circumvent, requiring distinct analysis and, in many instances, anticipatory protective instruments (renunciation agreements, donations effected at the appropriate time and in the appropriate form);
- disinheritance — available only within the enumerated grounds set forth in Article 1008 of the Civil Code, and requiring precise documentation of the underlying conditions; absent such documentation, disinheritance will be successfully challenged;
- foreign-law succession arrangements — relevant for individuals holding assets abroad, conducting cross-border business, or contemplating a change of tax residence; international succession is governed by Regulation (EU) No 650/2012, the proper application of which warrants separate analysis;
- tax planning — encompassing inheritance and gift tax, the housing exemption, the taxation of dispositions of inherited assets, and the tax consequences of the family foundation.
VII. Scope of Practice
Skarbiec Law Firm advises and litigates across the full spectrum of succession matters — from the drafting of foundational instruments to representation in contested proceedings:
Drafting and revoking wills. Preparation of testamentary instruments calibrated to the asset and family structure; revocation of existing wills; analysis of the effectiveness of prior instruments; documentation of renunciation of inheritance and of disposition of an estate already accepted.
Contentious proceedings. Challenges to the validity of wills on permitted grounds (defects of will, formal defects, mistake, duress, or absence of conscious decision); securing of the estate; inventory; rejection of inheritance; opening of the will and orders for its production; administration of unattributed estates; disclosure of estate assets; declaration of acquisition of inheritance; partition.
Succession planning. Establishment and operation of family foundations; analysis and quantification of the forced share, together with instruments of mitigation; preparation and review of disinheritance documentation; tax planning incident to succession; cross-border succession planning.
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