Work is underway on amending the inheritance law. Although the draft bill is currently in the review phase, an analysis of the proposed changes already provides insight into what to expect from the future amendment. The draft bill, dated December 15, 2021, proposes changes to the Civil Code and certain other laws.
I. A new ground for declaring an heir unworthy.
The most important of the proposed changes is undoubtedly the draft amendment to Article 928 § 1 of the Civil Code, which assumes adding a new point 4 after point 3, according to which: Article 928 § 1 point 4 – “An heir may be deemed unworthy by the court if:
4) persistently failed to fulfil his maintenance obligation towards the testator or persistently avoided taking care of the testator.
Currently, the Civil Code (in the discussed Article 928) provides only three conditions for the court to recognize an heir as unworthy of inheritance – Article 928 § 1. "An heir may be recognized by the court as unworthy if:
- he intentionally committed a serious crime against the testator;
- by deceit or threats he persuaded the testator to make or revoke a will or in the same way prevented him from making one of these acts;
- intentionally concealed or destroyed the testator's will, forged or altered his will or knowingly benefited from a will forged or altered by another person.
In other words, the proposed amendment to the provision in question introduces a completely new premise, according to which persons who have evaded the obligation to pay maintenance, as well as those who have not taken care of the testator, may be excluded from inheritance.
In the justification for the bill, its authors explain the need for this change as "equitable considerations." They further specify that "The legal system should respond to ethically inappropriate behavior by individuals who may benefit from an inheritance." The authors of the bill thus want to avoid a situation where, after certain individuals acquire an inheritance, this fact creates a feeling of injustice, unfairness, or immorality among the testator's family.
However, the proposed amendment to the regulations has so far been met with considerable skepticism among experts. Experts point out, first and foremost, that the proposed new point 4 in Article 928 § 1 is imprecise. There are cases where the testator's relatives reside permanently abroad and are therefore unable to provide care for the testator or even maintain daily contact due to technological barriers, which often mean that older people can only contact their loved ones in person or by phone.
In such a situation, in many cases, during the inheritance proceedings, other participants will undoubtedly raise allegations that the person is unworthy of inheriting. In such a case, both the court and the participants' attorneys will face the challenge of conducting evidentiary proceedings to present the participant as someone who did not care for the testator. This will concern not only the fact of providing legal care, but primarily actual care. It should be recognized that it will be difficult to prove, in the circumstances of a particular case, that such negligence occurred and that it fulfills the hypothesis of the legal norm in question. Due to its ambiguity, this new premise may lead to difficulties in interpreting the provision and, consequently, prolong the inheritance proceedings.
II. Narrowing the circle of heirs
Under current law, it is possible for great-nephews and great-aunts, among others, to be eligible to inherit. According to the justification for the bill, the Ministry of Justice believes these regulations should be changed, as these are usually people who knew the deceased only vaguely or not at all.
According to the text of the draft law, the following changes will be made to Article 934 of the Civil Code:
"a) § 2 shall read as follows: "If any of the testator's grandparents did not live to see the opening of the inheritance, the share of the inheritance that would have fallen to him shall fall to his children in equal parts.",
b) after § 2, § 21 is added, worded as follows: "If a child of any of the testator's grandparents did not survive to see the opening of the inheritance, the share of the estate that would have fallen to him or her shall fall to his or her children. They shall inherit in equal shares.",
c) § 3 shall read as follows: "If the grandfather who did not live to see the inheritance open and their children has no children, the share of the estate that would have fallen to him falls to the remaining grandparents in equal parts."
As the authors of the bill point out, "The amendment to Article 934 § 2 and 3 of the Civil Code will remove distant relatives from the circle of persons entitled to inheritance, with whom the bond is often insignificant or non-existent, while leaving the testator free to make a will and express his or her will if it differs from the assumption made by the legislator. Limiting the circle of statutory heirs cannot be considered merely a tool for streamlining ongoing proceedings or reducing the number of cases brought to court. Narrowing the circle of heirs in the manner provided for in the amended Article 934 of the Civil Code is deliberate for the reasons presented above. This narrowing will, however, result in streamlining ongoing proceedings and reducing the number of cases brought to court."
According to the authors of the bill, this change will undoubtedly shorten the duration of proceedings for determining the acquisition of inheritance, as there is no need to search for the deceased testator's extended family.
III. Suspension of the deadline for submitting a declaration of acceptance or rejection of inheritance
Article 1015 of the Civil Code is also to receive a new wording, in accordance with the draft in Article 1015 of the Civil Code, after § 1, § 11 and 12 are added, reading as follows:
"§ 11 In order to meet the deadline referred to in § 1, it is sufficient to submit an application to the court for the collection of the declaration of acceptance or rejection of the inheritance before its expiry."
"§ 12 If the submission of a declaration on acceptance or rejection of inheritance requires court permission, the time limit for submitting the declaration shall be suspended for the duration of the court proceedings on this matter."
Pursuant to Article 1015 of the Civil Code, a declaration of acceptance or rejection of an inheritance may be submitted within six months of the date on which the heir learned of their appointment. Failure to submit such a declaration, or submitting it after the deadline, is equivalent to acceptance of the inheritance with the benefit of inventory. In the case of minors, starting from the date on which they were effectively notified of their appointment to the inheritance, their legal representatives may apply to the court for permission to submit a declaration of direct acceptance or rejection of the inheritance. The validity of the declaration submitted on their behalf depends on obtaining such permission.
As the authors of the bill indicate, in order to resolve the dispute regarding the impact of initiating proceedings for permission to perform an act beyond the scope of ordinary management of the property of a child or a person under guardianship on the running of the deadline for submitting a declaration of acceptance or waiver of inheritance, the submitted bill decided to introduce an explicit regulation in this regard. It is proposed that if submitting a declaration of acceptance or waiver of inheritance requires the permission of a guardianship court, the deadline for submitting the declaration should be suspended for the duration of the proceedings. This solution should apply to both the minor and the person under guardianship. Once the circumstances justifying the suspension cease, the deadline will continue to run from the moment the suspension occurred. This means that the deadline specified in Article 1015 § 1 of the Civil Code will be extended by the duration of the obstacle, which undoubtedly is the need to obtain the permission of the guardianship court to accept or waive inheritance on behalf of the minor or person under guardianship.
IV. Summary
To recapitulate, it should be borne in mind that in the near future, probably within a few months, the provisions of inheritance law will be amended, which will add a completely new ground for unworthiness to inherit, i.e. persistent failure to fulfil the maintenance obligation towards the testator and, what is even more controversial and raises doubts of interpretation, persistent evasion of caring for the testator.
In addition, the circle of statutory heirs will be narrowed, from which distant relatives of the testator will be excluded.
The last significant change is the suspension of the deadline for submitting a declaration of acceptance or rejection of inheritance, which in practice applies primarily when it is necessary to submit a declaration on behalf of a minor child.
