The main advantages of the specific bequest institution are: (1) its simplicity, (2) the complete and immediate implementation of the will of the testator (upon opening of the inheritance), (3) the possibility for the testator to decide that a specified person shall acquire the concrete object of the legacy.
The specific bequest
Three years ago, an institution of specific bequest (also called the vindication legacy) was introduced in the Polish legal system. The specific bequest enables a disposition of concrete assets in the case of death. It is an institution of inheritance law.
Until the introduction of the vindication legacy, it was only the ordinary legacy that was provided for by law. In contrast to the specific bequest, by the ordinary legacy, the testator may, by his testamentary disposition, impose upon an heir the obligation to effect a definite material performance for the benefit of a specified person. In practice, under the ordinary legacy it is only a commitment that is established between the heir and the legatee of execution of the legacy, which means that the legatee has only a claim for performance of such legacy.
The vindication legacy constitutes the right on the part of the legatee to demand releasing to him or her the object of the legacy directly from the inheritance, not from the heir. At the time of opening of the inheritance, i.e. upon the death of the testator, the specific bequest transfers the ownership of goods or a subject of rights ex lege to the legatee, while the ordinary legacy constitutes a source of obligational legal relationship between the person obliged to perform the ordinary legacy and the ordinary legatee. The legatee does not have to be an heir. However, their liability under the inheritance debts may be similar at some points.
The great value of the specific bequest is its simplicity. The testator has to include a specific provision in the testament. However, the testament must be drawn up in the form of a notarial deed. The testator just has to indicate a specific person (specific persons) and provide that they shall acquire the concrete object of legacy upon opening of the inheritance. Specific bequest creates an opportunity for the testator to dispose his or her assets in the manner of his/her discretion, which is not guaranteed on the basis of the ordinary legacy. Therefore, by specific bequest, the testator may dispose such assets as:
- (A) goods precisely designated as to their identity (e.g. real estate or a car, etc. with precisely indicated characteristics);
- (B) transferrable property rights (e.g. a claim for payment of an amount of money from a particular entity or shares in a limited liability company);
- (C) an enterprise or agricultural farm, or
- (D) may establish for the legatee’s benefit some rights in real estate (usufruct and servitude).
The vindication legacy allows to freely dispose aforementioned assets of the testator and ensures direct obtaining of the rights to the assets on the part of the legatee. Immediate implementation of the will of the testator is associated with the fact, that the legatee obtains the rights to the assets immediately upon the death of the testator.
Below, we present some interesting practical items of a specific bequest.
It was noticed in the literature that the monies (specific amount) may not be an object of specific bequest, because for that purpose, an ordinary legacy was established. Nevertheless, it should be pointed out that there are some circumstances in which an amount of money may be included in the specific bequest, when it is ‘concretized’. This applies for example to: money stored in a safe or a safety box; de-materialized money saved in bank accounts (as receivables towards the bank); cash which is deposited on the designated bank account at the time of opening of the inheritance.
The testator may also include a share in the ownership of things in the specific bequest, designated as to their identity, as well as a share in other transferrable joint right to such things.
It was confirmed by the Polish Supreme Court, that specific bequest may transfer the right to an item indicated in the items A-D listed above, belonging to the joint property of the spouses remaining in statutory joint property regime.
As to the shares in the limited liability company – a specific bequest may include them, but it must be remembered that the articles of association may limit or exclude joining the company by the heirs of the deceased partner, which should also refer to the legatees.
The specific bequest concerning an enterprise will cover all of the components, which belonged to the enterprise at the time of opening of the inheritance, because then the bequest becomes effective. This means that from the date of making a will with a specific bequest changes may occur in the components of an enterprise which should be referred to the time of opening of the inheritance. There are no obstacles to identification of the most important components of the enterprise in the testament with specific bequest.
However, due to possible changes in those components, the will of the testator in this regard cannot be decisive as to the components of the enterprise existing at the time of opening of the inheritance, and only those components may be subjected to the specific bequest (existing at the time of the opening of the inheritance).
In case of both usufruct and servitude, a specific bequest is constitutive, which means that it leads to the creation of a new right which did not exist before. This kind of a specific bequest item is very limited due to the nature of those two rights, the creation and ability of disposition of which are restricted.
As far as foreigners are concerned, a specific bequest may be established for their benefit to a thing or a right which may qualify for the specific bequest. However, if the object of the specific bequest is a thing or a right the foreigners’ acquisition of which is limited by the relevant provisions of law (obtaining real estate or shares in the commercial company, being an owner or perpetual usufruct of real estate 1), a foreigner – vindication legatee, if not being a statutory heir, contrary to the basic principle of this type of bequest, will not acquire ex lege an object of legacy at the moment of opening of inheritance.
On the same basis as an heir, within two years of opening of the inheritance, the foreigner will have to file with the Minister of Internal Affairs a request for permission to acquire such a right. If such authorization is not obtained or an application is not filed, the bequest will be ineffective and the object of it will be subject to inheritance according to general principles.
The vindication legatee does not have to accept a specific bequest. He or she may make a statement on the acceptance of the specific bequest. Such a statement may be made before a court or before a notary public within 6 months following the date at which the legatee learned about the title under which he or she was designated for specific bequest. A statement concerning the acceptance of the specific bequest may not be charged with a condition or reservation concerning a time limit.
Theoretically, the vindication legatee has three options regarding the content of the declaration of acceptance of the bequest: he or she may accept the bequest either without the limitation of the liability for debts (simple acceptance), or with the limitation of such liability (acceptance with the benefit of inventory), or he or she may reject the specific bequest. In fact, however, only two of them will apply to the specific bequest – the acceptance or the rejection.
Nevertheless, the vindication legatees bear liability for inherited debts. Following the distribution of the inheritance, the heirs and the persons for whose benefit vindication legacies were made bear liability for inherited debts pro rata to the value received by them.
Moreover, the liability for inherited debts on the part of a person for whose benefit a vindication legacy was made is limited to the value of the object of vindication legacy taking into account the condition thereof and at the prices applicable upon opening of the inheritance. This solution is similar to the acceptance of the inheritance with the benefit of inventory (liability for the inherited debts only up to the value of the assets of the estate as established in the inventory).
In order to check inherited debts, the legatees may apply to the court for preparation of an inventory. The legatee may also apply for confirmation by the court of the acquisition of the specific bequest or for a deed of drawing up a certificate of succession by a notary public.
Generally, the specific bequest is a simple way to dispose some assets, where the testator wants some specified persons to acquire specific items or rights. Such bequests transfer the rights to specified item directly to the legatee. Therefore, the legatee acquires rights to it upon the death of the testator and he/ she does not have to request transfer of it from the heirs. Nonetheless, this also creates liability for inherited debts, so the beneficiary of specific bequest needs to consider whether to accept such legacy or to reject it. https://irglobal.com/article/important-information-dr-janusz-fiszer/
- an equivalent of a leasehold in the English law