State Liability for Damage Caused by a Court's Loss of a Will

**Judgment of the Municipal Court in Prague, file no. 19 Co 187/2024, dated 18 September 2024** **(i) Incorrect official procedure** In this context, the appellate court adds that the will dated [date] was drawn up at a time when Act No. 40/1964 Coll., the Civil Code, and Act No. 95/1963 Coll., on State Notarial Offices and Proceedings Before State Notarial Offices (Notarial Code), as amended up to [date] (hereinafter the "ZStN"), were in force. Pursuant to Section 90a(1)(a) of the ZStN, state notarial offices accepted into custody, upon the depositor's request, inter alia wills. State notarial offices were abolished as of [date] by Act No. 264/1992 Coll., amending and supplementing the Civil Code, repealing the Act on State Notarial Offices and Proceedings Before State Notarial Offices (Notarial Code), and amending and supplementing certain other acts. Pursuant to Section 15(1) of the Instruction of the Ministry of Justice of the Czech Republic, the Ministry of Finance of the Czech Republic, and the Czech Office for Surveying and Cadastre dated [date], Ref. No. [number] OOD, Ref. No. [number], and Ref. No. [number], on the transfer of the agendas of state notarial offices to cadastral offices, tax offices, and courts (hereinafter the "Instruction"), the district court in whose district the state notarial office operates shall, as of [date], take over, inter alia: (b) items deposited in custody accepted in connection with succession proceedings and custodies under Section 103a of the Notarial Code (Article II(5) of Act No. 263/1992 Coll.), and (c) files, documents, items, custodies, registry aids, and official seals, unless a special act provides otherwise (Article XII(3) of Act No. 264/1992 Coll.). Pursuant to paragraph 2 of the cited provision and Section 114 of Act No. 358/1992 Coll., on Notaries and Their Activities (Notarial Code; hereinafter the "NŘ"), the president of the district court shall distribute, evenly among notaries within the district court's jurisdiction, wills that were deposited in the custody of a state notarial office. Upon the testator's request, the testator shall be notified of the custody of the will. It follows from the above that after [date] the will came into the disposition of the District Court in Benešov, which was obliged to assign it to a specific notary within its jurisdiction and notify the person who executed the will. As of [date], the CEZ (today the Register of Legal Acts for the Event of Death) was established and is maintained electronically by the Notarial Chamber of the Czech Republic. In September 2001, it contacted the District Court in Benešov by letter in order to resolve problematic will entries. The annex thereto shows that the testatrix's will was included among them, identified by name, personal identification number, address, will number, and designation of the court. Despite its factual existence, the will was not entered into the CEZ. The succession proceedings after the death of [name of natural person], who died on [date], were then conducted without the will being discovered. However, the will was subsequently found at the District Court in Benešov, as evidenced by the record on establishing the status and contents of the will dated [date], as well as by the court's notifications addressed to the claimant and to the persons who inherited in the probate proceedings. Unlike the court of first instance, the appellate court found an incorrect official procedure within the meaning of Section 13(1) of the OdpŠk (Act on State liability for damage) on the part of the District Court in Benešov, because succession proceedings were conducted there under file no. D [number] without submitting the testatrix's will, even though it was deposited at the court. This conclusion is not affected by the fact that information about the will had not been entered into the CEZ. The defendant's objection that the State is not liable under the OdpŠk for the activities of the Notarial Chamber of the Czech Republic is irrelevant, because in the present case an incorrect official procedure on the part of the District Court in Benešov was proven. The appellate court further notes that compensation proceedings under the OdpŠk are not conducted for the purpose of fact-finding for any potential recourse claims by the defendant against the primary tortfeasor. **(ii) Amount of damage** The factual findings of the court of first instance regarding the course of the probate proceedings are also correct; however, its legal assessment of the scope of the claimant's inheritance right is not. The appellate court repeated the evidence by the will dated [date], file no. [number], which was drawn up in the form of a notarial deed pursuant to Section 476d(1) of the Civil Code as worded on the date the will was executed (effective until [date]). Within the meaning of Section 477 of the Civil Code, the testatrix appointed as heirs of all her immovable property the claimant and her husband [name of natural person], born [date], each in equal shares; as heir of the remaining property she appointed her husband [name of natural person], born [date], and in the event he did not inherit, she appointed spouses [name of natural person] as substitute heirs of that property, again in equal shares. According to the central population register, the testatrix's husband died on [date] and the claimant's husband died on [date]. The court of first instance thus overlooked that two testamentary heirs died before the testatrix (who died on [date]) and therefore could not be persons called to inherit under the will. Pursuant to Section 461(2) of the Civil Code, if an heir under a will does not acquire the inheritance, statutory heirs take his/her place. If only part of the inheritance is acquired under a will, statutory heirs acquire the remaining part. Under the cited provision, accrual (increase) of inheritance shares among heirs under the will is excluded; statutory heirs step into the place of the testamentary heir who has fallen away. In this regard, reference may be made to the conclusions of the Supreme Court's decision dated [date], file no. [case number], which states that: *"Basic prerequisites for inheritance are the death of the testator, the leaving of property forming the inheritance after the testator, a ground for inheritance pertaining to a specific person (i.e., a title to inherit), and the fact that this person survived the testator, has an interest in being the testator's heir (i.e., did not disclaim the inheritance), is not incapable of inheriting within the meaning of Section 469 of the Civil Code, and was not validly disinherited by the testator under Section 469a of the Civil Code. Objectively capable of inheriting is any person who, at the moment of the testator's death, was capable of having rights and obligations, as well as a conceived child, if born alive. Inheritance law is based on the principle that only a person who survived the testator may inherit, which follows from the fact that the heir's right to the testator's property can arise only after the testator has died."* The testatrix could have prevented these consequences by providing in the will that, in the event a testamentary heir did not acquire the inheritance for any reason, a substitute heir would take his/her place. However, she did so only in relation to the property that was to be acquired by her husband. She appointed spouses [name of natural person] as substitute heirs for that case, again in equal shares and without appointing any further substitute heir. In that situation, the claimant would therefore acquire only one half of the inheritance under the will. It can thus be concluded that, in causal connection with the incorrect official procedure of the District Court in Benešov, the claimant suffered damage in the amount of [amount], because property of that value was acquired—within the succession proceedings conducted at the District Court in Benešov under file no. D 948/2002—by third parties instead of the claimant. The court of first instance also correctly ruled on the defendant's delay in performance with reference to Section 15(1) and (2) of the OdpŠk, including the claim for default interest under Section 1970 of the Civil Code, at the rate determined by Section 2 of Government Regulation No. 351/2013 Coll., determining the amount of default interest and the costs associated with the enforcement of a claim. The court of first instance also properly addressed the objection that the State is liable for pecuniary damage only if the injured party proves that it is not possible to successfully obtain satisfaction of his/her claims against the tortfeasor, referring to pertinent case law of the Supreme Court, for example the decision dated [date], file no. [case number]. In this case, the probate proceedings were finally concluded on [date]. The court of first instance thus correctly examined acquisition by prescription (usucaption), which the court would have had to take into account ex officio if an action under Section 485 of the Civil Code (subsequently under Section 189(2) of the Act on Special Judicial Proceedings) had been brought. Under Section 134(1) of the Civil Code, a bona fide possessor becomes the owner of a thing if he/she has held it continuously for three years in the case of movables, and for ten years in the case of immovables. The acquisitive prescription period for immovables would thus have expired on [date] (the decision on inheritance dated [date] became final on [date]). The good faith of the female heirs, as well as of persons to whom the immovable property was transferred, was based on a final court decision confirming the acquisition of the inheritance. Moreover, although the raising of a limitation defence cannot be prejudged (which, in any event, pertains only in respect of the portion of the inheritance acquired by the "unauthorised" female heirs, or their heirs), it must be pointed out that under Section 105 of the Civil Code, in the case of the right of an entitled heir to the surrender of the inheritance (Section 485), the limitation period begins to run from the date the decision concluding the probate proceedings becomes final; this right becomes time-barred within the general three-year limitation period under Section 101 of the Civil Code. The claimant was provided information about the existence of the will only 18 years after the probate proceedings had ended. The conclusion that, in this case, bringing an action against the persons who in fact enriched themselves at her expense would have been manifestly futile, and that insisting on such enforcement would exhibit features of manifest formalism, is therefore correct.