Law of inheritance

canon law

advanced

PK_W08, PK_U05

PK_K05

Level: advanced

Goals: A student is to learn about the general issues related to the inheritance law, especially in terms of settling complex cases in future. The syllabus of the lectures is adjusted to the practical needs and it includes extensive and necessary analysis of the court’s law-cases; especially the syllabus contains presentation of changes in the regulations, jurisdiction and the related literature. Also, it takes into account new legal solutions through their verification against the approach derived from the doctrine.

Preliminary requirements: A student should know the obligatory topics (according to the program of the studies) of specific fields of the civil law (i.e. the general part, the property law, and the contract law).

Description of the subject

Topics:

The lectures will cover the specific cases of the inheritance law from the perspective of the civil law, and the tax law issues related to the object as well as the subject of inheritance, taking to consideration the legal succession of heirs.

Therefore, the scope of the lectures includes the following topics: The sources and the ordination of the effective succession law in force. The notion of inheritance and its elements (property rights and obligations). Inherited holding and debts. The scope of the accountability for the inheritance. The notion and scope of heirdom (opening and acquirement of inheritance, capacity and incapacity to inherit, unworthiness to inherit, function of forgiveness). Inheritance obligations vs. inheritance.

Intestate succession (circle of heirs, succession of inheritance, situation of a community and the national Treasury). Basics of inheritance of agricultural farms and of land contribution to a farming production coop. The scope of intestate succession vs. rights of the testator’s grandparents. Foreign inheritance.

Testament as the basis for inheritance (legal actions, formal requirements, kinds, interpretation, invalidity vs. ineffectiveness, conversion). Content of the testament (testator’s discretion, appointment to inherit, reasons for disinheritance, substitution vs. enlargement). Other testamentary instructions (legacy, further legacy, legacy over division, testamentary instruction). Rights of the executor of a will. Sectional testament.

Heir’s legal declaration (declaration concerning acceptance or disclaimer of inheritance, transmission, inheritance acquisition and its consequences, settlement of accounts, heirs’ liability). Direct assumption of a succession and assumption with the benefit of the inventory. Securing of the inheritance, inventory, authorized institutions (including tax institutions).

Persons entitled and obliged to compulsory portion of an inheritance (amount of the compulsory portion of an inheritance, liability, inheritance of claims, termination of actions). Joint property of inheritance and inheritance division. Ways of alienation of inheritance before division. Gifts to be included in the inheritance. Legal consequences of inheritance division.

Ascertainment of inheritance acquisition (the role of the decision, legal actions, legal consequences of the ascertainment of inheritance acquisition). Inheritance acknowledgement act (procedure, content of the notary act, security of the act, questioning of the act, limitations of the act issue). Legal proceedings to ascertain acquisition of inheritance and preparation of the inheritance acknowledgement act.

Agreements concerning inheritance (form, parties, subject, effects, scope of subrogation, liability). International inheritance law (rights of foreigners, inheritance of agricultural farms).

Evaluation methods: The prerequisite for passing is the positive result of the oral examination. The examination covers the theory and the knowledge of cases.

Literature

Sources:

1. The Constitution of the Republic of Poland dated 2nd of April 1997, Journal of Laws No 78, entry 483 with amendments;

2. Act of April 23th, 1964, Civil Code, Journal of Laws No 16, entry 93 with amendments;

3. Act of November 17th, 1964, Code of Civil Proceedings, Journal of Laws No 43, entry 296 with amendments;

4. Act of February 14th,1991, Notary Law, Journal of Laws of 2002, No 42, entry 369 with amendments;

5. Act of December 15th, 2000 on housing cooperatives, Journal of Laws of 2003, No 119, entry 1116 with amendments;

6. Act of July 28th, 2005 on court fees in civil trials, Journal of Laws No 167, entry 1398 with amendments;

7. Act of November 16th, 2006 on modification of the act on taxation of inheritance and gifts and of the act on taxation of civil law proceedings, Journal of Laws No 222, entry 1629;

8. Act of August 24th, 2007 on modification of the act – the Law of Notaries Public and other selected acts, Journal of Laws No 181, entry 1287;

Jurisdiction:

1. Judgement of the Constitutional Tribunal of September 5th, 2007, P 21/01, Journal of Laws No 170, entry 1205;

2. Judgement of the Constitutional Tribunal of January 31st, 2001, P 4/99, Journal of Laws No 11, entry 91;

3. Act of the Supreme Court of May 10th, 2006, III CZP 11/06, OSNC 2007, no 3, entry

38;

4. Judgement of the Supreme Court of July 6th, 2007, III CSK 86/07, „Rzeczpospolita" 2007, no 159, p. C3;

5. Judgement of the Supreme Court of March 11th, 2003, V CKN 1871/00, OSNC 2004, no 5, entry 85;

6. Judgement of the High Administrative Court of October 24th, 2007, II FSK 1212/06, „Jurysdykcja Podatkowa [Tax Jurisdiction]" 2008, no 4;

7. Judgement of the Administrative Court in Warsaw of May 12th, 2004, II AKa 185/04, OSA 2005, no 4, entry 33;

8. Decision of the Supreme Court of July 20th, 2005, II CK 2/05, MoP 2005, no 16, p.

779;

Literature:

1.E. Skowrońska-Bocian,Commentary to the Civil Code. Volume Four. Inheritance,Warsaw 2008;

2.S. Babiarz,Inheritance and donation in the civil and tax law, Warsaw 2008;

3.E. Skowrońska-Bocian,The inheritance law, Warsaw 2006;

4.A. Doliwa,The inheritance law, Warsaw 2007;

5.A. Stempniak,Proceedings for inheritance division, Warsaw 2006;

Supplementary literature:

1.M. Stus, K. Osajda, B. Sikora,Proceedings for inheritance division,t.IV, Zakamycze 2006;

2.K. Osajda,Collective testaments, Warsaw 2005;

3.E. Skowrońska-Bocian,Testament in the Polish law, Warsaw 2004;

4.M. Kłos,Proceedings for inheritance division, Warsaw 2004;

5.M. Niedośpiał,Testator’s liberty, Bielsko - Biała 2004.

6.K. Grzybowski, M. Szpunar,Notary certificate of inheritance as the alternative way to confirm the right to inherit, „Rejent" 2006, no 2;

7.S. Babiarz, Commentary to the judgement of the High Administrative Court of October 24th, 2007, II FSK 1212/06, „Jurysdykcja Podatkowa" 2008, no 4.