Waiver of succession by a minor living abroad | In Principle

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Waiver of succession by a minor living abroad

A minor may become an heir either by will or by law. Often the appointment to an inheritance results from earlier waiver by the parents (due to debts of the estate or a desire to pass on the inheritance to further heirs). However, a seemingly simple succession becomes complicated if a minor heir does not live in Poland.

Waiver of succession by a parent on behalf of a minor, also when the liabilities of the inheritance exhaust or exceed the value of the assets (Supreme Court resolution of 22 May 2018, case no. III CZP 102/17), falls within activities exceeding the scope of ordinary management of the child’s property (Family and Guardianship Code Art. 101 §3). Therefore, in the first place, a parent or legal guardian should apply to the competent family court for permission to submit a declaration waiving succession. Only with a final decision of the court granting such consent can a declaration waiving succession be made on behalf of a minor.

Which court is competent to consider an application for consent to waive succession?

If the child resides in Poland, the matter is simple. The application for authorisation to waive succession should be submitted by one or both parents to the guardianship court for the child’s place of residence. However, if the child does not live in Poland, a more in-depth legal analysis is necessary to determine which court the application should be filed with and whether the Polish court will have jurisdiction at all.

If the child has his habitual residence in the European Union, the Brussels II bis Regulation (2201/2003) will apply. According to that regulation, the basis for establishing jurisdiction in matters of parental responsibility is in principle the child’s place of habitual residence. (In C‑497/10, Mercredi, for example, the Court of Justice held that the meaning and the scope of the concept of “habitual residence” should be determined in accordance with the principle of the best interests of the child, in particular the criterion of proximity. This concept corresponds to a place where the child shows some integration into the social and family environment. It is for the national court to determine that place on the basis of all relevant factual circumstances of the case. In particular, the conditions and reasons for the child’s stay in a given member state, as well as his or her citizenship, are important. In addition to the physical presence of the child in the territory of a member state, which should be taken into account, other additional factors should demonstrate that this presence is not merely temporary or occasional.)

However, as we have written before, there are some restrictions on the application of this rule, mainly related to determination of parental responsibility in the context of divorce proceedings or in the event of the unlawful removal of a child abroad.

Art. 12(3) of the Brussels II bis Regulation is particularly significant. It provides that for the purposes of proceedings on parental responsibility, the court of a member state which is not the state of the child’s habitual residence will be found to have jurisdiction if three conditions are all met:

  • The child has a significant connection to the member state (in particular if one of the parents still lives in that member state or the child is a national of that state).
  • The parents have accepted the jurisdiction of that state.
  • The jurisdiction of the member state’s courts is in the best interests of the child.

In this context, it is worth noting the judgment of the Court of Justice in C-565/16, Saponaro. In response to a request for a preliminary ruling, the court held that a request made jointly by the child’s parents in the court of their choice constitutes an unequivocal recognition by them of that jurisdiction and, where there are no indications that prorogation of jurisdiction could adversely affect the situation of the child, it must be considered to be in the child’s best interest.

The court also stressed in that case that not only did the child have the nationality of the state whose courts were chosen as competent, but the same state was the place of residence of the decedent at the time of his death, as well as the location of the estate and the liabilities encumbering the estate. These elements strengthen the child’s relationship with the member state, and the court chosen by the parents was well placed to assess the context in which the succession was to be waived.

On the other hand, if a prosecutor, who has the status of a party to the proceedings in question under national law, is a party to the proceedings within the meaning of Art. 12(3)(b) of the Brussels II bis Regulation, his possible opposition to the choice of jurisdiction chosen by the child’s parents is an obstacle to the recognition that all parties to the proceedings have recognised the prorogation of jurisdiction at that time.

If the child lives outside the EU, the 1996 Hague Convention on Parental Responsibility and Protection of Children may apply. Again, the application must be lodged with the family court competent for the child’s place of residence.

On the other hand, if the child is residing in a state which does not fall within the scope of either of the above legal instruments or any bilateral international agreement (such as the legal assistance treaties between Poland and Ukraine of 24 May 1993 and between Poland and Vietnam of 22 March 1993), the provisions of the Civil Procedure Code will apply.

According to Art. 11063 of the Civil Procedure Code (national jurisdiction in pending cases will be determined pursuant to Art. 1103 and 11032 of the code), national jurisdiction includes matters involving relations between parents and children, including cases seeking permission for the parents to carry out an act exceeding the scope of ordinary administration of the child’s property or for the parents to consent for such an activity to be carried out by the child, if 1) the child has a place of residence or habitual residence in Poland or 2) the applicant and the child are Polish citizens.

When the jurisdiction of the Polish court is established in accordance with Art. 569 §1 of the Civil Procedure Code, the competent court will be the guardianship court for the place of residence of the person whom the proceedings concern, and in the absence of residence, for the place of his/her stay. If there is no such basis, the competent court will be the Warsaw District Court.

Which law is applicable?

If it turns out that the Polish court will be competent to rule on the application, it should be determined which substantive law it will have to apply.

According to Art. 56 of the Private International Law, the law applicable to matters of parental responsibility and contact with the child is determined by the 1996 Hague Convention. It provides that the exercise of parental responsibility is governed by the law of the state of the child’s habitual residence (Art. 17 of the convention), regardless of whether the country whose law under the provisions of the convention would be applicable is a party to the convention (Art. 20).

This means that if the child has his habitual residence in a country whose regulations do not require the court’s consent to the parent’s waiver of succession on his behalf, such consent should not be required by the Polish court which has received the parent’s declaration waiving succession on behalf of the minor child. In this assessment, the Polish court should apply the substantive law of the child’s habitual residence (Tarnów District Court judgment of 20 February 2014, case no. I Ca 483/13).

What is the time limit?

It should be remembered that, irrespective of the habitual residence of the child, the time limit for declaring the waiver of succession remains unchanged and is six months from the date when the heir became aware of the basis for his appointment. Thus the time limit runs for each heir individually: for immediate relatives, from the time they learn of the decedent’s death; for more distant relatives, from the time they are informed of the waiver of succession by those previously entitled to the estate; and for testamentary heirs, from the time they are informed of the existence of the will or its content.

It is recognised that the six-month period may not terminate before the legally final conclusion of the proceedings for permission for the minor heir to submit a declaration waiving succession. After that point, the minor’s declaration should be submitted without delay, unless the time limit has not yet expired (Supreme Court resolution of 22 May 2018, case no. III CZP 102/17).

As in the case of adult heirs, the absence of a minor’s waiver of succession within six months of learning of appointment to the estate is deemed to mean accepting the inheritance with the benefit of an inventory, meaning limited liability for the decedent’s debts.

However, it is worth remembering that accepting an inheritance with the benefit of an inventory limits the liability for debts in the estate only in relation to creditors against whom the heir effectively asserted this limitation at the stage of examination of the merits of the case or enforcement-clause proceedings (Civil Procedure Code Art. 319 and 792).

Therefore, before deciding on acceptance or waiver of succession by a minor, it is necessary to analyse what assets and liabilities the decedent has left and whether it is more advantageous to waive the inheritance or accept it with the benefit of an inventory.

Anna Olejniczak-Michalska, attorney-at-law, Private Client practice, Reprivatisation practice, Wardyński & Partners