The Object of Protection and the Subject Matter of Offences Resulting in Unworthiness to Inherit or Disinheritance

Abstract

In cases defined by law, a heir may be excluded from inheriting either by the court, on the basis of provisions of Art. 928–930 CC, or by the testator himself who can deprive the statutory heir of the right to legitim (art. 1008 CC). The reasons for depriving of inheritance on the grounds of unworthiness to inherit or disinheritance are different except in the case of committing an offence. Establishing whether a particular offence gives grounds for excluding from inheritance is based on legal criteria, different for these two civil-law actions. In case of unworthiness to inherit, it is the criterion of the „seriousness of offence” and the prerequisite of committing the offence „against the testator”. Both expressions raise difficulties of interpretation and until now there has not been developed, in legal literature and in the case-law, a uniform view as how to interpret them. There are also doubts as to understanding the criteria which let assess an offence in the context of the reasons for disinheritance – in the doctrine there is a particular inconsistency concerning the notion of a „person closest to the testator”. There are also differences concerning the catalogue of offences resulting in depriving of legitim. However, it is broadly accepted that, although the criterion based on the definition of the object of protection defined in Art. 1008 item 2 CC brings to mind associations with the typology of offences in the Penal Code, it should not mean a „simple reference” to relevant chapters of the Penal Code because of the complexity of the objects of protection specific for different types of offences.