POLAND Law and Practice Contributed by: Piotr Augustyniak, Nash Concept Ltd
6. Roles and Responsibilities of Fiduciaries 6.1 Prevalence of Corporate Fiduciaries Corporate fiduciaries in the Anglo-Saxon sense are not a feature of Polish practice: there is no domestic trust to administer, and the roles that exist – executor of a will, succession administrator, guardian – are ordi - narily filled by individuals, whether family members, attorneys or tax advisers. Professional trust compa - nies enter the picture only through foreign structures, and their involvement is now the exception rather than the rule. The management board of a family foundation is the nearest domestic analogue to a professional fiduciary body, and boards increasingly combine family mem - bers with external professionals. Polish law applies a uniformly elevated standard to such functions: dili - gence is measured against the professional character of the activity, so that a lawyer, adviser or corporate director is judged by the competence the role implies rather than by a layman’s standard, without a separate statutory tier for “corporate” fiduciaries as such. 6.2 Fiduciary Liabilities Polish law recognises no general doctrine of pierc - ing the veil of a foundation. The statutory inroads are specific: the family foundation is jointly liable for the founder’s pre-contribution obligations up to the value of the assets received; for tax purposes, a foreign enti - ty over which the settlor retained effective control may be disregarded as a nominee arrangement or reached through the controlled-foreign-entity and general anti- avoidance rules; and in insolvency, contributions may be clawed back under the rules described in 4.1 Asset Protection . Fiduciaries themselves are liable to the foundation for damage caused by acts contrary to law or the statute, unless no fault is attributable to them, applying the professional standard of diligence described above. Protective mechanisms are real but bounded. The assembly of beneficiaries may approve the board’s discharge; the statute may allocate functions and permit reliance on professional advice; investment management may be delegated to licensed manag - ers, converting the board’s duty into one of prudent
ciation of real estate has turned modest family estates into substantial ones, and the monetary nature of the claim makes litigation straightforward to commence. Related areas include disputes over the revocation of gifts for gross ingratitude, contests over the valid - ity of wills – particularly on grounds of capacity and undue influence in an ageing population – and pro - longed proceedings for the division of estates held in fractional co-ownership among heirs. Two newer sources are also visible. Cross-border estates under the EU Succession Regulation generate disputes over habitual residence and over the interac - tion of foreign structures with Polish forced heirship. And the family foundation, as it spreads, is beginning to produce its first internal conflicts – over beneficiar - ies’ information rights, over the exercise of reserved founder powers after the founder’s incapacity, and over the position of omitted family members – which will shape the institution’s jurisprudence in the com - ing years. 5.2 Mechanism for Compensation Polish law compensates, it does not punish. The aggrieved forced heir receives a money judgment for the value of the zachowek with statutory interest; a party injured by a fiduciary’s breach recovers the loss actually suffered, including lost profits, under general contractual or delictual liability; and unjust enrich - ment supplies the residual remedy where property has passed without legal basis, notably in the settle - ment of the affairs of unmarried partners. Punitive or exemplary damages are unknown, and the function of interest – at statutory rates – is compensatory. The machinery is judicial, before the ordinary civil courts, with a court fee of 5% of the amount in dispute (capped) as the principal cost threshold; arbitration of succession disputes is possible in principle but rare in practice. Courts possess equitable correctives at defined points – the deferral, instalment, or exception - al reduction of zachowek claims, and the moderation of contractual penalties – but these operate within, not outside, the compensatory frame.
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