Skutki niedopełnienia wymagań dotyczących stwierdzenia treści testamentu ustnego (art. 952 § 2–3 k.c.)
The legal consequences of non-fulfillment of statutory requirements for confirmation of the content of an oral testament (Art. 952 § 2 – 3 of the Civil Code)
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The issue of legal qualification of a situation where the legal requirements for confirmation of the content of an oral testament had not been met has so far not been a subject of a thorough analysis. According to the prevailing view, an oral testament that had been executed in compliance with the formal requirements stipulated in Art. 952 § 1 of the Civil Code, but its content has not been confirmed in the manner specified in Art. 952 § 2 or § 3 of the Civil Code, is valid, but ineffective. Some authors express an opinion about ineffectiveness of such a testament and do not formulate their opinion as to its validity. The same is true in the case law. There are also doctrinal or judicial opinions indicating the invalidity of such a testament, but such qualification that was formulated under the Decree on succession law of 1946 is nowadays rather rare. In the opinion of the author, there are strong arguments to reject the ideas presented so far and to formulate a different point of view. According to the author, because Art. 952 § 2 – 3 of the Civil Code prescribes the exclusive methods for confirmation of the content of an oral testament, until such content is confirmed in one of the prescribed methods, it remains unknown for the purpose of the law. From the legal perspective, it is not possible to ascertain that the testator, by formulation of the testament’s content, conveyed a decision that would trigger legal consequences (i.e. made a declaration of intent). Under the law, we must therefore assume that an oral testament had not been executed at all and thus there are no legal consequences that the law attaches to such a testament. However, once the content of an oral testament is confirmed in the manner specified in the Art. 952 § 2 or § 3 of the Civil Code, we can determine whether the testator had made a declaration of intent and, if the answer is positive, whether that declaration meets the criteria of its validity (e.g. regulated by Art. 58 of the Civil Code).
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