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Attorney Milena Nowicka
What does unworthiness to inherit entail?
What are the effects of unworthiness to inherit?
What does the procedure for excluding an unworthy heir look like? Court intervention is indispensable here.
When may one seek a declaration that an heir is unworthy to inherit?
Declaration of unworthiness due to the commission of a serious, intentional criminal offense against the testator
An heir’s unworthiness due to attempts to influence the principles of testamentary succession
Declaration of unworthiness due to interference with the content of a will
Persistent failure to perform a maintenance (alimony) obligation toward the testator
Persistent evasion of the duty of care toward the testator
A declaration that a given person is unworthy to inherit makes it possible to exclude that person from the estate and deprive them of any potential right to a statutory share. In this way, it may be ensured that a person who did not “deserve” the deceased’s property does not, in fact, receive it. The institution of unworthiness to inherit therefore carries serious consequences. Precisely for this reason, inheritance law allows it to be applied only in specific circumstances and subject to the fulfillment of defined conditions.
Unworthiness to inherit consists in a court’s determination that a given person did not merit receiving property from the deceased—whether by way of inheritance, a legacy, or a claim to a statutory share.
It therefore constitutes an exception to the general rule that an estate should be distributed in accordance with the will of the testator. Such a significant interference with the principles of succession does not occur without reason. The grounds for unworthiness largely relate to situations in which the testator himself might have considered that a particular person did not deserve to inherit, yet was unable to take the necessary steps—e.g., due to threats that effectively prevented him from changing the content of the will.
Naturally, allowing a person who threatened the testator to inherit would—put mildly—be unjust. It is precisely in such circumstances that the doctrine of unworthiness to inherit applies. Its purpose is to safeguard the sense of social justice.
A person declared unworthy to inherit is treated as though they had not survived until the opening of the estate. The consequences of this status will vary, however, depending on whether the person is a statutory heir, a testamentary heir, a legatee, or merely a person entitled to a statutory share.
A statutory heir who is declared unworthy to inherit receives no part of the estate and is not entitled to a statutory share. At the same time, the persons who would inherit in the next order step into their place. For example, if the testator’s son is declared unworthy to inherit, his share passes to his own children—that is, to the testator’s grandchildren.
A testamentary heir who is unworthy is likewise excluded from the estate. In such a case, a substitute heir (if appointed in the will) succeeds to the inheritance. Otherwise, the unworthy heir’s share accrues to the remaining testamentary heirs by way of accretion.
If a legatee is declared unworthy, they are treated as though the legacy had never been established in their favor. Similarly, where a person entitled to a statutory share is declared unworthy, that entitlement is extinguished.
Unworthiness to inherit may be declared exclusively by a court. This means that court proceedings must be initiated.
Such proceedings may be brought by any person who has a legal interest in a declaration of unworthiness. This therefore includes not only heirs or family members. A public prosecutor or even a third party—such as a witness to a situation in which the unworthy person destroyed the testator’s will—may also intervene.
Importantly, a limited time period applies for initiating the proceedings. It is one year from the moment the interested party learned of the conduct justifying a declaration of unworthiness, and no more than three years from the testator’s death.
It should also be noted that, according to established case law, a declaration of unworthiness to inherit may be made only within adversarial proceedings. This is a crucial point, as many people believe that it suffices to raise the allegation of unworthiness in the course of proceedings to confirm acquisition of the estate. This is incorrect, since such proceedings are non-contentious in nature. As a result, a separate action must be brought. During its pendency, the proceedings to confirm acquisition of the estate will be stayed.
If, on the other hand, rights to the estate have already been confirmed—whether before a notary by way of a notarial certificate of succession or before a court—it is still possible to effectively seek a declaration of unworthiness. In such a case, a final court judgment declaring unworthiness will constitute grounds for amending the final decision confirming acquisition of the estate.
Not every situation in which someone’s conduct appears reprehensible will allow for a declaration of unworthiness to inherit. Since this institution constitutes an exception to the rule, the legislator has reserved it for special cases.
These cases are exhaustively enumerated in the statutory provisions. This means that only where a given situation falls within one of the points on this limited list may an effective exclusion from the deceased’s estate occur. An heir may be declared unworthy to inherit only if they:
Before discussing each of these grounds in detail, one further important note is necessary: points 4 and 5 entered into force only on 15 November 2023. Consequently, a declaration of unworthiness on these grounds may be sought only if the relevant conduct occurred after that date.
For an act to qualify as a serious, intentional criminal offense against the testator:
The greatest difficulty lies in determining when an offense qualifies as “serious.” Some take the view that this refers to crimes classified by the Criminal Code as felonies rather than misdemeanors. This distinction, however, does not always prove reliable. It is therefore advisable to consult a law firm, so that an inheritance lawyer may assess whether the particular conduct gives rise to a realistic prospect of a declaration of unworthiness to inherit.
A person will also be deemed unworthy to inherit if they attempted (successfully or not) to influence the making of a will—by coercing the testator into drafting or revoking it, or by preventing the drafting or revocation of such a last will. Importantly, such conduct must involve the use of a serious and unlawful threat or deceit.
A person may also be unworthy not so much because they influenced the testator’s actions, but because they interfered with the content of the will itself—for example, by forging it, altering it, concealing it, or destroying it, or even by making use of a will forged or altered by someone else. Any such conduct justifies a declaration of unworthiness to inherit.
For a court to declare unworthiness to inherit, it is not sufficient merely to show that a person failed to pay maintenance. Persistence in evading the obligation is also required, as well as the relevant timing—it is essential that the conduct occurred after the entry into force of the amendment (i.e., after 15 November 2023). Moreover, the statutory provisions require that the maintenance obligation be specified as to amount in a court judgment, settlement, or contract.
A court may also declare unworthiness to inherit where the unworthy heir failed to fulfill a duty of care. This may concern, in particular, duties arising from parental authority or foster parenthood, marriage, guardianship, or the obligation of mutual respect and support between parent and child.
In this case as well, two additional conditions must be met. First, the conduct must have been persistent. Second, it must have occurred only after the entry into force of the amendment concerning the grounds for unworthiness to inherit (i.e., after 15 November 2023).
Assume that a given person engaged in at least one of the five types of conduct described above and that you are able to initiate proceedings for a declaration of unworthiness within the prescribed time limit. Does this guarantee that the heir will be excluded from the estate?
Not necessarily. Apart from the need to present appropriate evidence for the court to declare unworthiness, another obstacle may arise.
It is accepted that if the testator forgave the person in question, that person may not be declared unworthy to inherit. The manner in which forgiveness was granted is irrelevant—any form is permissible, including implied forgiveness. What is essential, however, is that at the time of granting forgiveness the testator possessed sufficient awareness of the consequences associated with it. Full legal capacity is therefore not required.
As can be seen, determining whether a given person meets the criteria for being declared unworthy, and whether forgiveness occurred, is of paramount importance. It is advisable to clarify all these issues before filing a claim. And if you are unable to do so independently, it is best to seek the assistance of an experienced inheritance lawyer.
