Reserve - in what situations can its payment be avoided?
The reserved share is an institution of civil law that should be of interest to all persons omitted from inheritance. In practice, this is basically the only way to get at least some of the property from a deceased close relative. However, those obliged to the reserved share try to avoid paying it - is it even possible?
Entitled to a reserved share
A reserved share is a form of financial compensation that occurs when the deceased's close family has not been called to inherit. This may happen, for example, as a result of drawing up a will, in which a person from outside the family circle will be appointed to the entire estate.
The regulations clearly indicate who, from whom and in what circumstances has the right to demand the payment of a reserved share. Pursuant to Art. 991 of the Civil Code, the following are entitled to a reserved share:
the testator's descendant (child, grandson, great-grandson, etc.),
the testator's spouse,
the testator's parents,
provided that they would be inherited pursuant to the provisions of the law.
In other words, if a person from the above-mentioned the circle has not been appointed to the inheritance, has the right to demand a reserved share (part of the estate).
How much is the reserved share?
The right to a reserved share does not mean obtaining the right to inheritance in the amount that would exist in the case of statutory inheritance. If the person entitled to a reserved share is permanently incapable of work or is a minor, he or she is entitled to a share of 2/3 of the value of the inheritance share that would have accrued to him if he were appointed to the estate under the provisions of the Act. In other cases, the holder of the reserved share is entitled to half of the value of such share.
The testator left behind a wife and one minor child. Under the will, he appointed his former colleague to the entire inheritance. The wife and child of the deceased will not be inherited, but they are entitled to a reserved share. If there was a statutory inheritance (i.e. if we assumed that there was no will on the basis of which the entire estate was acquired by the deceased's friend), the wife and child of the deceased person would each inherit up to 1/2 share (the wife would inherit one half of the estate, the child while the other half). The amount of the reserved share will therefore be as follows: the deceased's wife is entitled to a reserved share in the amount of 1/4 of the estate (1/2 * 1/2), while the deceased's child is entitled to 2/6 (or 1/3) of the estate ( 1/2 * 2/3). Due to the minority, the child is entitled to a reserved share in the share of 2/3 of the value of the inheritance share, while the wife is entitled to a share of 1/2 of the value of the inheritance share.
The testator left behind a wife and three adult children, and the entire inheritance was prescribed to his brother by virtue of his will. The wife and children of the deceased will not be inherited, but they are entitled to a reserved share. If there was a statutory inheritance (i.e. if we assumed that there was no will on the basis of which the entire estate was acquired by the deceased's brother), the wife and children of the testator would each inherit up to 1/4 of the share (the wife would inherit 1/4 of the estate, each of the children of the deceased in 1/4). The amount of the reserved share will therefore be as follows: the wife and each child of the deceased are entitled to a reserved share of 1/8 of the estate by (1/2 * 1/4). The wife and adult children of the deceased are entitled to a reserved share of 1/2 of the value of the inheritance share that would accrue to them in the case of statutory inheritance.
Who is obliged to pay the reserved share?
The person obliged to pay the reserved share is the person who inherited the property - the actual heir who acquired the estate. In practice, such an obligation may be imposed on more people - when there are more heirs.
The heirs often try to defend themselves against the payment of a reserved share, especially if the inherited property is worth a lot. The more substantial the inheritance mass, the larger the reserved share becomes. No wonder, then, that the heirs try to avoid paying the reserved share in various ways. There are several ways to do this.
Limitation of a claim for a reserved share
It is possible to avoid paying a reserved share if the claim of the person entitled to this benefit is time-barred. It should be remembered that you can apply for a reserved share within a strictly defined period - after this expiry it will not be possible to effectively claim the payment, even in court.
Art. 1007 of the Civil Code
The rights of the entitled person under the reserved share shall expire 5 years after the will is announced The lapse of 5 years from the date of the will is therefore crucial. If the entitled party does not obtain the reserved portion within that time, either amicably or in court, the right to effectively pursue his claim is forfeited.
Filing a claim for the payment of a reserved share 5 years after the will is announced will be ineffective. The heir, relying on the allegation that the claim is time-barred, will be able to release himself from his liability and will not pay any amount.
It is worth remembering, however, that bringing the case to court before the expiry of these 5 years causes the limitation period to be interrupted - this means that after the end of the proceedings, it will start running anew.
Another way to avoid paying a reserved share is to disinherit eligible people.
Disinheritance can only be made by the testator in the will for specific reasons, including:
persistent proceedings against the will of the testator and in a manner contrary to the principles of social coexistence,
committing an intentional crime against the testator or one of his closest persons against life, health or freedom, or blatant offense against honor,
persistent failure to fulfill family obligations towards the testator.
If the testator effectively disinherits his heir, he will not be entitled to claim a reserved share in any amount in the future.
Avoidance of paying the reserved share will also occur in the case of renunciation of inheritance. If the future heir concludes an appropriate agreement with the testator (while still in his lifetime), in the future he will lose not only the right to inheritance, but also the reserved portion.
Unworthiness of inheritance
The reserved portion will also not be available if the person entitled to it is deemed unworthy of inheritance. Pursuant to Art. 928 §1 of the Civil Code, "the heir may be considered unworthy by the court if:
committed a serious crime against the testator,
induced the testator to draw up or revoke a will by deception or threat, or in the same way prevented him from performing one of these activities,
intentionally concealed or destroyed the testator's will, forged or modified the will, or knowingly made use of the will by another person forged or modified”.
In order for the unworthiness of inheritance to become a fact, it must be proved in court - it is therefore necessary to establish an appropriate lawsuit. Only after obtaining a final judgment, the obligated shareholder may refer to the non-compliance of the entitled person and, as a result, refuse to pay.
Principles of social coexistence
If the demand for a reserved portion finds its final in the courtroom, the person obliged to pay may defend himself by the so-called principles of social coexistence. This is another way to avoid paying this type of benefit.
For this purpose, the obligated person must prove to the court that the payment of the reserved share will be unfair and unfair in a given situation. Such an objection may take place, for example, when there are no grounds to believe that the entitled to a reserved share is unworthy of inheritance, and yet his behavior towards the testator was reprehensible.
In practice, relying on the principles of social coexistence in a case for the payment of a reserved share does not necessarily allow you to avoid payment (although there are such cases), but it certainly helps to reduce the amount of this benefit.
Is it possible to avoid paying the reserved share?
Being entitled to a reserved share does not mean an automatic obligation to pay the obligation on the part of the party liable. The entitled person may not want to exercise his right or he will delay too long until the statute of limitations occurs.
In order to avoid paying a reserved share, it is possible to invoke the principles of social coexistence, unworthiness of inheritance of the entitled person, renunciation of the right to a reserved share, or finally disinheritance.