Where there's a will there's a way
13.10.2011
creditor protection
The Notarial Register of Wills, recently rolled out by Poland’s National Council of Notaries, makes it easier for creditors to locate a will and establish the legal successors of a deceased debtor.
The Notarial Register of Wills has been in operation in Poland since 5 October 2011. It is not a state register, but was established by the National Council of Notaries on the basis of internal regulations adopted by the professional association of Polish notaries in June and September 2011.
The main purpose for establishing the register is to enable interested individuals and institutions to determine whether a decedent left a will. Later the Polish register is also to be integrated into a network of similar registers operating elsewhere in Europe.
Voluntary and confidential
Under the rules governing the register, a will may be entered in the register if the will is made in the form of a notarial deed, or a handwritten will filed with a notary for safekeeping. Entry of a will in the register remains confidential during the lifetime of the testator and is disclosed only after the testator dies, on the basis of the death certificate or equivalent document (such as a court order).
Any person may request information from the register.
Inclusion of a testator’s will in the register is voluntary. Information about existing wills is included in the register only upon request of the testator. The testator may also request deletion or amendment of the entry. (Under the law of wills, this could happen for example when the testator revokes the entire will or specific provisions of the will. A will may be revoked by the testator by making a new will, destroying or amending the will with the intention of revoking it, or taking actions causing invalidation of the will.)
For these reasons, the register will not be exhaustive or completely up to date, which also affects the evidentiary value of information from the register. Nonetheless, the register should still prove useful in certain circumstances.
Heirs, courts, administrative agencies…
It is expected that the register will be used by heirs seeking to verify whether a decedent left a will. Courts and administrative agencies will also consult the register to verify information submitted by parties to judicial or administrative proceedings. The register will be an instrument enabling verification of legal succession, helping to determine the persons entitled to replace the decedent in pending proceedings.
…banks and other creditors
Testators’ creditors will also consult the register. It can be difficult for creditors to determine legal succession in order to enforce claims under legal acts concluded with persons who have later died—particularly because the heirs may avoid initiating inheritance proceedings in such cases.
Under Civil Code Art. 1025 §1, the court will issue an order confirming inheritance upon motion of a person with a legal interest, which has been interpreted by the courts to include a decedent’s creditors. In such cases, the burden of commencing the proceeding and identifying the heirs in the motion to the court rests on the creditors. It is in the creditors’ interest to complete this proceeding as quickly as possible, as well as any pending enforcement proceedings involving the decedent, which are typically stayed until legal succession is resolved.
Before the Notarial Register of Wills was established, a creditor had no access to information about wills left by the debtor. The creditor could obtain this information only after commencement of an inheritance proceeding, when the fact that the debtor made a will would be disclosed before the court. It was also not until that time that all of the persons who should be parties to the inheritance proceeding (statutory heirs as well as beneficiaries under the will) could be identified. This prolonged the proceeding, effectively delaying satisfaction of the creditor’s claim out of the assets of the debtor’s estate.
With the passage of time, the value of claims steadily rises due to accrual of interest. Prolongation of judicial and enforcement proceedings may thus result in a creditor being unable to satisfy its entire claim because with time the value of the claim may exceed the value of the estate or other asset out of which the claim might be satisfied (e.g. property secured by a mortgage).
Now that the Notarial Register of Wills has been put into operation, creditors will have an opportunity before filing suit to check whether the deceased debtor left a will. If this information is included in the register, the creditor will then be able to indicate in the motion commencing the inheritance proceeding that the decedent left a will and identify the notarial office where the will may be found. This should clearly expedite inheritance proceedings because all of the necessary parties may be identified at an earlier stage. This will more quickly allow creditors to continue judicial or enforcement proceedings that have been stayed in the meantime.
Leszek Zatyka, Reprivatisation practice, Wardyński & Partners
