CORONAVIRUS (COVID-19) AND „INTERNATIONAL” SUCCESSION PROCEEDINGS 21 July 2020
The current epidemiological situation may - paradoxically - have the effect of bringing some succession proceedings to a smoother conclusion - why? The answer to this question should be sought in Article 15 zzs1 of the Act of 14 May 2020 (Journal of Laws of 2020, item 875)[1].
The coronavirus pandemic has led to the cancellation of thousands of hearings, significantly postponing the possibility of concluding court cases. This uncertainty particularly affects proceedings in which the parties or participants are persons who do not reside in Poland on a daily basis. Meanwhile, there are many cases pending before the local courts involving real estate inherited from persons whose probable legal successors live in the United States, Israel, Australia or other distant corners of the globe.
Until now, the arrival of these persons has often conditioned the completion of such „international” succession proceedings, due to the need to collect an assurance of succession from them[2]. Currently - although the opportunities for travel have been significantly reduced - there is an opportunity to significantly improve this activity.
Indeed, in accordance with the wording of the aforementioned Article 15 zzs1 : During the period of the state of epidemic emergency or state of epidemic declared due to COVID-19 and within one year after the last one is revoked, in cases heard according to the provisions of the Act-Code of Civil Procedure [...]2) the chairman may order a closed meeting if he considers it necessary to hear the case, [...] and none of the parties objected to the conduct of the in camera hearing within 7 days from the date of service of the notice to them of the referral to the in camera hearing.
Although this issue raises some doubts, the practice of our law firm shows that in such a case the Court (presiding judge) may - when directing the case to a closed session - allow the heir to receive a written assurance of succession. Such a solution has many positive effects. Firstly, it considerably speeds up the completion of succession proceedings as it removes the need to schedule successive hearings in order to hear the heir, whose arrival (particularly under current conditions) is associated with a certain degree of uncertainty. On the other hand, this solution also provides an opportunity to reduce the costs of the proceedings, by limiting them in this regard (the receipt of the succession certificate) to the expenses of the circulation of correspondence and its possible translation.
For the above reasons alone, the interpretation of the provisions under consideration adopted by (at least some) Courts should be viewed positively. In order to minimise the risk of disregarding a request for the Court to collect an assurance of succession in such a form, one should consider combining it with a possible request for this action to be performed by electronic means - allowing for distance communication.
This, in turn, opens up the question of whether and how the Courts will cope with the technical revolution forced by the pandemic. However, the answer to this question may already be provided by practice alone.
[1] Article 15zzs1 was added by Article 46(21) of the Act of 14 May 2020. (Dz.U.2020.875) amending, inter alia, the so-called „Crisis Shield 2.0” (i.e. the Act of 2 March 2020 on special solutions related to the prevention, prevention and combating of COVID-19, other infectious diseases and crisis situations caused by them [Dz.U. pos. 374, 567, 568 and 695]) as of 16 May 2020.
[2] Article 671 of the Code of Civil Procedure. [Assurance of succession].
§ 1 An assurance given by the declaring heir may be accepted as proof that there are no other heirs.
§ 2. In the assurance, the applicant should declare everything known to him:
1)on the existence or non-existence of persons who would exclude known heirs from the succession or would inherit with them;
2)on the testator's wills.
§ 3. In terms of criminal consequences, an assurance is equivalent to giving evidence under oath, of which the judge should warn the person giving the assurance.
The current epidemiological situation may - paradoxically - have the effect of bringing some succession proceedings to a smoother conclusion - why? The answer to this question should be sought in Article 15 zzs1 of the Act of 14 May 2020 (Journal of Laws of 2020, item 875)[1].
The coronavirus pandemic has led to the cancellation of thousands of hearings, significantly postponing the possibility of concluding court cases. This uncertainty particularly affects proceedings in which the parties or participants are persons who do not reside in Poland on a daily basis. Meanwhile, there are many cases pending before the local courts involving real estate inherited from persons whose probable legal successors live in the United States, Israel, Australia or other distant corners of the globe.
Until now, the arrival of these persons has often conditioned the completion of such „international” succession proceedings, due to the need to collect an assurance of succession from them[2]. Currently - although the opportunities for travel have been significantly reduced - there is an opportunity to significantly improve this activity.
Indeed, in accordance with the wording of the aforementioned Article 15 zzs1 : During the period of the state of epidemic emergency or state of epidemic declared due to COVID-19 and within one year after the last one is revoked, in cases heard according to the provisions of the Act-Code of Civil Procedure [...]2) the chairman may order a closed meeting if he considers it necessary to hear the case, [...] and none of the parties objected to the conduct of the in camera hearing within 7 days from the date of service of the notice to them of the referral to the in camera hearing.
Although this issue raises some doubts, the practice of our law firm shows that in such a case the Court (presiding judge) may - when directing the case to a closed session - allow the heir to receive a written assurance of succession. Such a solution has many positive effects. Firstly, it considerably speeds up the completion of succession proceedings as it removes the need to schedule successive hearings in order to hear the heir, whose arrival (particularly under current conditions) is associated with a certain degree of uncertainty. On the other hand, this solution also provides an opportunity to reduce the costs of the proceedings, by limiting them in this regard (the receipt of the succession certificate) to the expenses of the circulation of correspondence and its possible translation.
For the above reasons alone, the interpretation of the provisions under consideration adopted by (at least some) Courts should be viewed positively. In order to minimise the risk of disregarding a request for the Court to collect an assurance of succession in such a form, one should consider combining it with a possible request for this action to be performed by electronic means - allowing for distance communication.
This, in turn, opens up the question of whether and how the Courts will cope with the technical revolution forced by the pandemic. However, the answer to this question may already be provided by practice alone.
[1] Article 15zzs1 was added by Article 46(21) of the Act of 14 May 2020. (Dz.U.2020.875) amending, inter alia, the so-called „Crisis Shield 2.0” (i.e. the Act of 2 March 2020 on special solutions related to the prevention, prevention and combating of COVID-19, other infectious diseases and crisis situations caused by them [Dz.U. pos. 374, 567, 568 and 695]) as of 16 May 2020.
[2] Article 671 of the Code of Civil Procedure. [Assurance of succession].
§ 1 An assurance given by the declaring heir may be accepted as proof that there are no other heirs.
§ 2. In the assurance, the applicant should declare everything known to him:
1)on the existence or non-existence of persons who would exclude known heirs from the succession or would inherit with them;
2)on the testator's wills.
§ 3. In terms of criminal consequences, an assurance is equivalent to giving evidence under oath, of which the judge should warn the person giving the assurance.