1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union legislation?
[‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(i) relates to the signature and the content of the authentic instrument; and
(ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.]
If so, what are they? Are these only notarial acts or also acts of other authorities?
In accordance with Polish law, requirements provided for under EU law in respect of authentic instruments are fulfilled by the following documents: notarial acts, court decisions, civil status documents or decisions rendered by administration authorities.
Please note that in Poland there is a very extensive group of entities which are competent to issue official documents. Pursuant to Article 244 of the Polish Code of Civil Procedure:
§ 1. Official documents drawn up in the form prescribed by relevant public authorities and other state authorities constitute proof of the facts officially stated therein.
§ 2. The provisions of § 1 apply mutatis mutandis to official documents issued by authorities other than those provided for in § 1 within the scope of public administration tasks delegated to them by the law.
2. In your legal system, does the authentic instrument have enhanced probative value? What are the rules that provide that?
Yes, in accordance with the Polish Code of Civil Procedure (Article 244 and Articles 2431- 257 of the Polish Code of Civil Procedure), an authentic instrument has probative value.
Moreover, pursuant to Article 2 par. 2 of the Polish Notaries Law Act of 14 February 1991, actions performed by a notary in accordance with the law, have the quality of an authentic instrument.
According to the provisions of the Polish Code of Civil Procedure documents may be classified either as authentic or private documents.
In civil procedure conducted before courts, the competence to certify copies of documents has been granted to notaries (Article 79 point 2 and Articles 96-101 of the Notaries Law Act of 14 February 1991), consuls (Article 28, Article 32 of the Consular Law Act of 25 June 2015, Journal of Laws, item 1274), lawyers, legal advisers, patent agents and counsels of the General Counsel to the Treasury (Article 89 and Article 129 of the Polish Code of Civil Procedure).
Pursuant to Article 129 § 3 of the Polish Code of Civil Procedure, a copy which has been certified and bears a clause stating that it is a true copy of the original has the quality of an authentic instrument. With regard to the notarial certification of a copy of a document, the said provisions distinguish between copies certified to “be a true copy of the document produced” and copies certified “to be a true copy of the original”, with only the latter being considered as an authentic instrument because the clause certifying that they are “true copies of the original” shall be included therein.
3. Do all authentic instruments have the same enhanced probative value?
Yes, authentic instruments are considered to be an autonomous piece of evidence, the probative value of which is examined in practice by courts in accordance with the general rules applying to the assessment of evidence (Chapter 3 "Evidence" of the Code of Civil Procedure). Once the court has examined an exhibit, it shall proceed to the assessment of value and reliability thereof. Discretionary assessment of evidence allows courts to determine whether an exhibit presented is reliable or not.
4. Enhanced probative value concerns:
- The date on which the authentic instrument was drawn up
- The place where the authentic instrument was drawn up
- The signature by the parties of the authentic instrument
- The parties’ declarations
- Any observation made by the authority within the limits of its competence
- The measures the authority declares to have taken
- Appearance, identification and consent of the parties
5. Enhanced probative value can be contested:
Before which authority: The court
According to which procedure (state the applicable rules): these are challengeable presumptions, Articles 252-254 of the Polish Code of Civil Procedure
Within what timeframe: Until the authenticity of the document is established by a judgment which has the force of res judicata.
1. In your legal system, which authorities or delegates of public authority can issue authentic instruments in accordance with Article 3 (1) (i) of Regulation 650/2012?
Notaries (e.g. copies of succession records, of succession certificates, copies of declarations on accepting or rejecting succession);
Courts – civil divisions (e.g. decisions acknowledging the acquisition of the estate which have acquired the force of res judicata, dividing the estate, declarations on accepting or rejecting inheritance);
Civil registry offices (e.g. copies of birth, marriage or death certificates, which are necessary for conducting the succession procedure with a notary or at a court).
2. Can you indicate which are the most common authentic instruments in the case of a succession to the estates of deceased persons and which authorities issue them?
Notarial certificate of succession is drafted by a notary and a decision acknowledging the acquisition of the estate which has acquired the force of res judicata is issued by a court.
Declarations on accepting or rejecting succession are made before courts and/or notaries. Last wills made in the form of a notarial authentic instrument and agreements as to the succession (e.g. waiver of succession) are made with a notary.
3. Probative value of certain specific acts, for example the “acte de notoriété” in France and Italy
Pursuant to Article 95j of the Notaries Law Act of 14 February 1991 (Journal of Laws of 2002, no. 42, item 369 as amended), a registered notarial certificate of succession states who succeeds after whom and has an effect of a court decision acknowledging the acquisition of the estate which has acquired the force of res judicata. Whenever specific provisions refer to a decision acknowledging the acquisition of the estate, a registered notarial certificate of succession shall also be construed as such (Article 95p of the Notaries Law Act and Article 679 of the Polish Code of Civil Procedure).
Succession records refer to a document which includes declarations of persons who appeared before a notary and requested that a notarial certificate of succession be issued. In the records, the notary instructs the parties of their obligation to reveal all circumstances which are of relevance to the contents thereof, as well as of the provisions of Article 95c § 2 point 8 of the Notaries Law Act, i.e. of the criminal liability under Article 233 of the Polish Criminal Code for making false declarations.
1. What types of family law instruments exist?
- Matrimonial property contracts: spouses may both extend and limit the community of assets regime; they may also establish the seperation of property regime or the seperation of poperty regime with the ecqualization of the accrued assets (which is a hybrid);
- Division of property between spouses: the assets may be divided only if the community of property has ceased to exist, i.e. as a result of concluding a matrimonial property contract (prenuptial or postnuptial), or following a divorce, legal separation, death of either spouse, incapacitation or bankruptcy.
Within the broader concept of family law:
- Donations made in favor of family members,
- Life annuity contracts, establishing habitation rights on favor of members of family/friends