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are things with regard to which we can perform individualisation
(exactly define the thing in question in a manner arousing no
doubts), but individualising treats do not demonstrate so evident
unrepeatable features as things in the above-mentioned
examples. It leads to further consequences, namely to
acceptance, contrary to other suggestions

, of a specific bequest

in the form of money under the stipulation that it is sufficiently
individualised. For example, the money bequeathed should be
located in a concrete safe, envelope or chest. In the case of the
specific bequest of a certain amount of money kept in a bank
account, it is a bequest of a transferable property right not a thing
since it is a claim against the bank

Taking into consideration the regulation contained in Article 47
Section 1 of the Polish Civil Code, a component part of a thing
cannot be the object of the specific bequest. For example, it will
be impossible to bequeath by means of the specific legacy a part
of the real property divided by a land surveyor. Arguments of
practical nature speak in favour of accepting dispositions
regarding allotments separated by land surveyors despite the fact
that they still remain component parts of the real property.
Moreover, it will be possible to make a specific bequest of a
fractional part of a thing specified as to its identity or a share in
the joint ownership of a thing

. Although such share is not a

thing, it is classified as a transferrable property right. Two
options are acceptable, namely that such share exists on the
opening of the succession or that the testator only in his will
sections off such share in his property and dispose of it by means
of the specific bequest.

Doubts were voiced in the context of the option of disposing of
future things

by means of the specific bequest. It is impossible

not to agree with E. Gniewek who claims that “future things
form a separate category; under no circumstances we can
reasonably classify them under things specified as to their
identity, and in transactions they are subject to principles
relevant for fungibles. Keeping that in mind, we have to exclude
future things from the institution of specific bequest”

. The

argument opposing the stand adopted by the author is the fact
that the key issue for establishing whether a given thing belongs
to the testator or not is the time of opening the succession and
not the time of making the will. At the stage of making the will,
an accurate and precise designation of the object of the specific
bequest is essential, in this case – designation of the future thing.
It results in a situation where the notary public can draw up a
notarial testament whereby the testator bequeaths to the legatee a
future thing, being sure that in the nearest future he will become
its owner.

Therefore, we should be in favour of the stand accepting the
option of bequeathing future things by means of the specific
bequest. However, we need to add an important stipulation: such
object does not have to exist at the moment of making the
disposition, neither does it need to be individualised, but it must
or should be possible to designate the object by the description
contained in the content of the specific bequest on the opening of

The justification of the bill, p. 9; W. Żukowski, Projektowane wprowadzenie legatu

windykacyjnego do polskiego prawa spadkowego, Kwartalnik Prawa Prywatnego
2010, no. 4,

p. 1033; E. Skowrońska-Bocian, Komentarz do kodeksu cywilnego.

sięga czwarta. Spadki, Warszawa 2011, p. 185; J. Górecki, Zapis windykacyjny –

uwagi de lege ferenda [in:] Rozprawy z prawa prywatnego, prawa o notariacie i
prawa europejskiego, (ed.) E. Drozd, A. Oleszko, M. Pazdan, Kluczbork 2007, p. 136.

J. Turłukowski, Zapis windykacyjny. Komentarz, Warszawa 2011, p. 30; P.

Księżak, Zapis windykacyjny, Warszawa 2012, p. 99; K. Osajda, Przedmiot Zapisu

windykacyjnego i odpowiedzialność zapisobierców windykacyjnych za długi
spadkowe, Monitor Prawniczy 2012, no. 3, p. 127; M. Kowalewska, M. Panek,
Przedmiot zapisu windykacyjnego w praktyce notarialnej – wybrane zagadnienia,
Rejent 2012, no. 10, pp. 109-112.

S. Wójcik, F. Zoll, [in:] System Prawa Prywatnego, tom 10, Prawo spadkowe (ed.)

B. Kordasiewicz, Warszawa 2013, p. 426.

E. Skowrońska-Bocian, Komentarz do kodeksu cywilnego. Księga czwarta. Spadki,

Warszawa 2011, p. 185; J. Górecki, Zapis windykacyjny w praktyce notarialnej,

Rejent 2012, no. 4, p. 30; P. Księżak, Zapis windykacyjny, Warszawa 2012, p. 100
and next; P. Zakrzewski, Zapis windykacyjny

, Przegląd Sądowy 2012, no. 2, p. 13; S.

Wójcik, F. Zoll, System Prawa Prywatnego, Tom 10, Prawo spadkowe, (ed.) B.
Kordasiewicz, Warszawa 2013, pp. 426 - 427. Compare: E. Gniewek, O

niedopuszczalności zapisu windykacyjnego majątku wspólnego małżonków, Rejent
2012, no. 1, p. 18.

E. Gniewek,

O niedopuszczalności zapisu windykacyjnego majątku wspólnego

małżonków, Rejent 2012, no 1, p. 18.

the succession. Effectiveness of the bequest of future things
depends on the possibility of their identification among things
belonging to the property of the testator. It is difficult to find
arguments in favour of a different stand. Linguistic interpretation
of the regulations cited does not give grounds for excluding
future things from the group of objects covered by the specific
bequest. Furthermore, arguments of axiological nature also seem
to favour this perspective: a deep conviction of the testator that
he will acquire a specific thing and will intend to leave it after
his death to a person indicated by him. The time of making the
will should not thwart such intentions by the lack of the option
of bequeathing a future thing by means of the specific bequest.

Among supporters accepting specific bequests of future things
are M. Kowalewska and M. Panek who allow for bequeathing
future things on the basis of the content of Article 981

Section 1

of the Polish Civil Code. They claim that “making a future thing
the object of the specific bequest fulfils the hypothesis of Article
981

Section 1, and it is tantamount to the stipulation of a

precedent condition – establishment of the future thing.
According to the mentioned article, the stipulation of a condition
or time limit made when establishing the specific legacy is
deemed non-existent. This provision, however, does not apply if
fulfilment of the condition occurred before the opening of the
succession”

. This stand is erroneous. The term “condition”

used in Article 981

should be rather understood in line with

Article 89 of the Polish Civil Code as a future and uncertain
event. In the case of the bequest of a future thing, the testator
does not make anything contingent upon any stipulation, hence it
cannot be construed as formulation of a condition in the above-
cited meaning; the testator just describes the object of the
specific legacy. Because of that, we cannot assume that we are
dealing here with the stipulation of a precedent condition.

Summarizing, it should be noted that the thing being the object
of the specific bequest does not have to belong to the testator at
the time of making the will. The notary public should not require
any proof entitling the testator to the object of the bequest.
Nevertheless, a detailed description of the bequeathed object
plays a very important role at the stage of verification of rights to
the specific bequest. At this stage, it is also verified whether the
thing designated as the object of the specific bequest belongs to
the property of the testator.

It would be convenient to mention now a set of things. Since a
set of things (e.g. library or stamp collection) does not constitute
a separate category of things within the meaning of Article 45 of
the Civil Code, it cannot be the object of the specific bequest. In
addition, it is further justified by the fact that a set of things
understood as a whole, usually comprised of matching and
organizationally combined things with the total value and
usefulness exceeding values of its separate components, cannot
constitute an individual object of transactions. Therefore, a set of
things will not be the object of the specific bequest, but separate
things that are its components. That is why the testator needs to
make as many specific bequests as there are components in the
given set of things. Effectiveness of each component will be
evaluated independently. Adoption of such solution may,
however, turn out to be problematic in practice. The notary
public drawing up the will should enumerate all the components
of a given set. The question is what we should do if between the
time of making the will and the testator’s death his stamp
collection is enriched by two new elements. In this scenario, the
bequest of future things appears to be helpful. The notary public
should define the existing stamp collection (list its elements as
on the date of making the will) and add that the object of the
specific bequest includes also elements of the set – new stamps –
acquired in the future. Such clarification means that the object of
the specific bequest is the stamp collection consisting of all the
elements that belong to the set on the opening of the succession.
Defining the object of the specific bequest in such manner
allows us to sufficiently isolate things from the property of the
testator and individualise the stamp collection comprising

M. Kowalewska, M. Panek, Przedmiot zapisu windykacyjnego w praktyce

notarialnej – wybrane zagadnienia, Rejent 2012, no. 10, pp. 101 - 102.

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