Polish conflicts of laws rules in succession matters

I. Introduction

This memorandum explains the rules that guide the Polish courts in determining which state’s law applies to succession matters, such as a will’s validity or determination of the heirs to a deceased person. These rules are currently set out in Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (“Regulation No 650/2012”).
Regulation No 650/2012 replaced the succession-related provisions of the Private International Law Act of 4 February 2011 (“the 2011 Act”) as of 17 August 2015 and applies where the deceased died on or after 17 August 2015. The 2011 Act had come into force on 16 May 2011 and then replaced the Private International Law Act of 12 November 1965 (“the 1965 Act”). The provisions of the 2011 Act and the 1965 Act will also be discussed in this memorandum given that they remain relevant notably in respect of the successions of persons who died prior to 17 August 2015. An overview of the rules governing the Polish courts’ jurisdiction in succession matters is also presented below.
Denmark, Ireland and the United Kingdom are not member states (of the European Union) within the meaning of Regulation No 650/2012.
Poland is a party to several bilateral agreements with other states concerning in particular conflicts of laws in succession matters. These agreements will be disregarded in this memorandum. However, one must bear in mind their existence and verify whether they alter the general rules presented below.
The information provided in this memorandum is of a general nature and should not be considered exhaustive.

II. Nationality

A person’s national law is that of the state whose citizen he or she is.
Where a person is a citizen of two or more states, each such citizenship is taken into account for the purpose of Regulation No 650/2012.
On the other hand, a person who is a Polish citizen is deemed to have no other citizenship for the purposes of the 2011 Act and 1965 Act. A person who is a citizen of several foreign states is deemed for these purposes a citizen of the state to which he or she is most closely related.
Where a person has no citizenship or his or her citizenship cannot be determined, then the law of the state of his or her domicile is applied instead of his or her national law for the purposes of the 2011 Act and 1965 Act.

III. Formal validity of a will or other disposition upon death

III.1. Wills
Poland is a party to the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. This convention applies to the form of a will, including a will that amends or revokes an earlier will.
Hence, a testamentary disposition is valid as regards form if its form complies with the internal law:

1. 1. of the place where the testator made it, or
   2. of a nationality possessed by the testator, either at the time when he or she made the disposition, or at the time of his or her death, or
   3. of a place in which the testator had his or her domicile either at the time when he or she made the disposition, or at the time of his or her death, or
   4. of the place in which the testator had his or her habitual residence either at the time when he or she made the disposition, or at the time of his or her death, or
   5. so far as immovables are concerned, of the place where they are situated.

III.2. Non-testamentary dispositions of property upon death made orally
The rules outlined in point III.1. above apply also to the formal validity of dispositions of property upon death other than wills, such as agreements as to succession, made on or after 16 May 2011, where such dispositions were made orally.
A disposition of property upon death other than a will made orally prior to 16 May 2011 is formally valid if its form complies with the national law of the deceased as at the time that the disposition was made. It was, however, sufficient to respect the form required by the law of the state in which the disposition was made. If any of these laws is a foreign law but its conflicts of laws rules provide for the application of Polish law, then Polish law must be applied instead of that foreign law. If the national law of the deceased is a foreign law and its conflicts of laws rules provide for the application of another foreign law, then that other foreign law must be applied instead of the national law of the deceased.

III.3. Non-testamentary dispositions of property upon death made in writing
Where the deceased died on or after 17 August 2015, the formal validity of his or her written dispositions of property upon death other than wills, such as agreements as to succession, is governed by rules similar to those explained in point III.1. above.
If, however, such a disposition was made prior to 17 August 2015, it is valid as regards form if its form complies with the governing law designated by the said rules or if it is formally valid in application of the conflicts of laws rules which were in force, at the time the disposition was made, in the state in which the deceased had his or her habitual residence or in any of the states whose nationality he or she possessed or in the member state of the authority dealing with the succession. Where Poland is one of such states, it is sufficient that the disposition is formally valid according to the law designated according to the rules as explained in point III.2. above Where the deceased died prior to 17 August 2015, the rules outlined in point III.2. above apply to the formal validity of his or her written dispositions of property upon death other than wills, such as agreements as to succession.

IV. Substantive validity of a will or other disposition upon death

IV.1. Preliminary
The issues of the substantive validity of a will or other disposition of property upon death include notably the capacity to make a will or other disposition, existence and interpretation of a will or other disposition as well as vitiating factors affecting a will or other disposition.
IV.2. Dispositions made by those deceased on or after 17 August 2015
Where the deceased died on or after 17 August 2015, the admissibility and substantive validity of his or her disposition of property upon death other than an agreement as to succession, is governed by the law that would have been applicable to the succession of that person if he or she had died on the disposition’s date (see point V.2. below). The deceased is, however, allowed to choose as the law to govern the admissibility and substantive validity of his or her disposition of property upon death, the law of the state or one of the states whose nationality he or she possesses at the time of making the choice or at the time of death. These rules apply in particular to wills. Similar rules apply to agreements as to succession regarding the succession of one person, except that the choice of the law governing the admissibility and substantive validity of such an agreement requires the consent of all its parties. Special rules concern agreements as to succession regarding the succession of several persons. Where the governing law designated under the rules discussed above in this paragraph is not a member state’s law and its conflicts of laws rules provide for the application of another law, then that other law must be applied provided that it is the law of a member state or is applicable under its own conflicts of laws rules.
If, however, a disposition of property upon death was made prior to 17 August 2015, it is valid as regards its admissibility and in substantive terms if it complies with the governing law designated by the rules as explained in the preceding paragraph or if it is valid as regards its admissibility and in substantive terms in application of the conflicts of laws rules which were in force, at the time the disposition was made, in the state in which the deceased had his or her habitual residence or in any of the states whose nationality he or she possessed or in the member state of the authority dealing with the succession. Where Poland is one of such states, it is sufficient that the disposition is admissible and valid in substantive terms according to the law designated according to the rules as outlined in point IV.3. below.
IV.3. Dispositions made by those deceased before 17 August 2015
The substantive validity of a will or other disposition of property upon death made by a person who died prior to 17 August 2015 is governed by the national law of the deceased as at the time that the will or other disposition was made. If the above national law is a foreign law but its conflicts of laws rules provide for the application of Polish law, then Polish law must be applied instead of that foreign law. As regards a will or other disposition made prior to 16 May 2011, if the above national law is a foreign law and its conflicts of laws rules provide for the application of another foreign law, then that other foreign law must be applied instead of the national law of the deceased

V. Succession matters in general

V.1. Preliminary
The rules discussed below concern all issues other than the formal or substantive validity of a will or other disposition of property upon death. These issues relate in particular to determining who, when, how and to what extent acquires the estate of a deceased person, renunciation of an estate, liability for the deceased’s debts, the position of forced heirs, if any, legacies and generally the effects of a will or other disposition of property upon death.
V.2. Succession of a person deceased on or after 17 August 2015
V.2.1. In the absence of a choice of law
Where the deceased died on or after 17 August 2015, then, as a rule, the whole of his or her succession is governed by the law of the state in which the deceased had his or her habitual residence at the time of death. Where the governing law so designated is not a member state’s law and its conflicts of laws rules provide for the application of another law, then that other law must be applied provided that it is the law of a member state or is applicable under its own conflicts of laws rules.
Where, by way of exception to the above, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with another state, the law applicable to the succession is the law of that other state.
V.2.2. Choice of law
A person who died on or after 17 August 2015 may, in a will or other disposition of property upon death, choose as the law to govern his or her succession as a whole, the law of the state or one of the states whose nationality he or she possesses at the time of making the choice or at the time of death. In this case, the governing law is determined based on this choice rather than according to the rules discussed in point V.2.1. above.
A choice of law made prior to 17 August 2015 by a person who died on or after that date is valid if it meets the conditions discussed in the preceding paragraph or if it is valid in application of the conflicts of laws rules which were in force, at the time the choice was made, in the state in which the deceased had his or her habitual residence or in any of the states whose nationality he or she possessed. Where Poland is one of such states, it is sufficient that the choice was made between 16 May 2011 and 16 August 2015 and is valid according to the rules as outlined in point V.3.2. below.
V.1. Succession of a person deceased before 17 August 2015
V.3.1. In the absence of a choice of law
As a rule, the succession of a person deceased prior to 17 August 2015 is governed by the national law of the deceased as at the time of his or her death.
If the above national law is a foreign law but its conflicts of laws rules provide for the application of Polish law, then Polish law must be applied instead of that foreign law. Where the deceased died prior to 16 May 2011, the above national law is a foreign law and its conflicts of laws rules provide for the application of another foreign law, then that other foreign law must be applied instead of the national law of the deceased.
V.3.2. Choice of law
The rules discussed in point V.3.2. above do not apply if the deceased died between 16 May 2011 and 16 August 2015 having chosen the law governing his or her succession. In this case, the law so chosen is applied to his or her succession. Such a choice is valid if it is made in the form of a will or other disposition of property upon death and refers to one of the following laws: the national law of the deceased either as at the time that the choice was made or as at the time of his or her death, the law of the state in which the deceased was domiciled at any of those times, the law of the state in which he or she was habitually resident at any of those times.

VI. Jurisdiction

VI.1. Succession of a person deceased on or after 17 August 2015
The Polish courts have jurisdiction to rule on the succession as a whole where the deceased who died on or after 17 August 2015, had his or her habitual residence in Poland at the time of death. In certain cases, the Polish courts are competent also where the deceased chose Polish law to govern his or her succession although his or her last habitual residence was located in another state. Special rules govern the Polish courts’ jurisdiction where the deceased died habitually resident in a state other than a member state.
VI.2. Succession of a person deceased before 17 August 2015
The Polish courts have jurisdiction in succession matters where the deceased who died before 17 August 2015, was a Polish citizen, domiciled in Poland or habitually resident in Poland at the time of his or her death, or where the estate or its significant portion is located in Poland. In addition, the Polish courts have exclusive jurisdiction to deal with succession matters to the extent that these concern the ownership of immovable properties located in Poland, other property interests in such properties or possession of such properties.

Prepared by the law firm
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