The Regional Court in Krakow dismissed an appeal of the participant – a statutory heir – against the decision of the District Court that the inheritance of a deceased natural person had been acquired for the benefit of a German registered association (eingetragener Verein) represented by the Firm. The basis for such a decision was the courts’ finding that the German joint will (the so-called Berliner Testament) was valid. After a nearly 9-year-long litigation the courts of both instances resolved a number of interesting and legally significant, and in this case disputed, issues in favour of the Firm’s Client. One of them was the issue of the nature (formal or substantive) of joint wills in light of the provisions of the convention on the conflicts of laws relating to the form of testamentary dispositions, drawn up in The Hague on 5 October 1961 (the “Hague Convention”). Further issues considered included:
- certain provisions of the German Civil Code (BGB) relevant to the case;
- the need to apply the prohibition on joint wills contained in Article 942 of the Polish Civil Code; and
- the scope of application of the Polish law on the acquisition of real estate by foreigners (the “Act”) to successions opened after the amendment of Article 8 effective as of 4 May 1996, and the interpretation of the term “entrepreneur” used in Article 8(2) of the Act in the light of Article 63 of the Treaty on the Functioning of the European Union and the principle of free movement of capital expressed in this Article.
The courts held that, based on the provisions of the Hague Convention, foreign joint wills are also valid under Polish law and may constitute the basis for the acquisition of real estate by foreign legal persons with their corporate seat in the European Union without the necessity of obtaining the appropriate permit from the Polish Ministry of Internal Affairs.
File number II Ca 2245/18.
