The relevant moment for establishing the value of the real estate, donations and specific bequests for the determination of the amount of reserved portion : remarks de lege lata and de lege ferenda : part II

The article deals with the issue which moment should be relevant for determination of the value of real estate, donations and specific bequests for the determination of the amount of reserved portion (legitim, legitimate portion, forced share). The aforementioned question concerns the fundamental and simultaneously very contentious and controversial issue with regard to the institution of the reserved portion. In order to answer the question which moment should be considered relevant in the process of establishing the value of the reserved portion, the reader is first provided with introductory remarks that outline the character of the problem. The next part contains a short historical background along with the major motives underlying the previously existing legal solutions. Thereafter, the author examines in more depth the provisions of the law currently in force and their practical implications. De lege lata the value of the real estate, donations and specific bequests is calculated on the basis of the prices as of the date of determination of the reserved portion. However, a thorough analysis of the current regulation and its practical consequences lead to a conclusion that there is an urgent need to substantially amend the aforementioned principle that no longer appears and therefore is inconsistent with contemporary social expectations. The basis for such conclusion is a critical review of vast selection of literature and judicature of the Supreme Court of the Republic of Poland, as well as legal practice. In this respect the article outlines and examines motives for a possible new legal solution. The author advocates for the amendment of the existing provisions in such a way that the value of real estate and the specific bequests is calculated as of the death of the decedent, whereas the most appropriate moment for calculation of the value of the donations is the day of their performance. The article concludes with the statement that taking into account the changes in the expectations of the society, the existing and as of now binding rule is out–of–date and no longer relevant and therefore should be replaced by the new proposal.