- Nullity and invalidity are different legal consequences.
- The invalidity of a will is very rare and occurs only in case of serious defects.
- Formal errors usually result in invalidity and make the will contestable.
- Errors in content do not normally affect the validity of a will. They are interpreted according to the assumed will of the testator.
- Very serious errors in content can lead to invalidity.
Before discussing individual errors, it should be said that the principle of the so-called “in favorem testamenti” applies in the law of succession. This means that whenever possible, the will or legacy is upheld. It follows that not all errors in the will lead to nullity or invalidity and can possibly be “cured” by interpretation. This is the process by which a court, in case of doubt, interprets a will so that it can be executed.
It is therefore necessary to distinguish between two types of legal consequences in the case of errors:
1. invalidity / Voidability
If a will suffers from a ground of invalidity, it is valid as such, in principle. But certain persons (usually legal heirs, appointed heirs and legatees) are granted the right to challenge this by means of an action under inheritance law.
Normally, those who are affected must take action and contest the will in order to have it amended or revoked.
A will is void only in very rare cases and in the event of serious deficiencies from the outset. If nullity exists, it cannot be remedied by interpretation.
Nullity may occur if the will is indecipherable or completely contradictory, or if persons concerned are unidentifiable. Also, joke wills or drafts cause nullity, because they do not represent proper wills.
Different types of errors with different effects
In order to make a will, one must be capable of making a will, i.e. of sound judgment and of legal age. If a person fails to meet these requirements during the drafting process, the will is contestable.
In the case of a public will, depending on cantonal requirements, a notary or other notary public draws up the will in accordance with the testator’s wishes. Afterwards, the person making the disposition signs the will in the presence of two witnesses. The witnesses do not know the contents of the will; they are only to testify to the testator’s capacity for judgment.
Due to professional involvement, errors in public wills are rather rare. Here the most common mistake is when the witnesses themselves are considered in the will. In such a case, the grants shall be declared invalid.
The handwritten will must comply with the so-called qualified written form, i.e. the entire text of the will must be handwritten, signed and dated (including year, month and day) by the testator from beginning to end. Furthermore, the document must be clearly marked as a will and the testator must be able to be precisely identified. Since this will is made without professional intervention, errors are not uncommon.
The most common formal errors occurring in handwritten wills are briefly explained below.
- The date is missing: The date is of particular importance because a newer will replaces an older one, unless the newer one is clearly intended and marked as an addition. Furthermore, the date can be used to draw conclusions about the testator’s testamentary capacity, and the date may be relevant with regard to a specific disposition. However, the will is not necessarily invalid if the date is missing. The will is valid even without a date if the above aspects can be established otherwise.
- The will is not written by hand: Handwriting is particularly important to ensure that the person making the will really formed his or her own will. A will that is not written in the person’s own hand is likely to be void as a rule, and will also not be taken into account if the persons concerned bring a successful action.
- The lack of a signature: Only the testator’s signature can attest to the definitive nature of the will. It is also used for identification purposes. Incase law, it is not entirely undisputed whether a missing signature entails invalidity or nullity.
Mr. Fischer has been widowed for several years and has two daughters. He recently wrote a will. After the death of Mr. Fischer, the inheritance was opened. The will is full of errors and contains no date. His daughter suspects that Mr. Fischer wrote the will when he was already suffering from dementia. Since his daughter is a legal heir, she can use the raise action for annulment.
Note: As a rule, form-invalid wills retain their primary validity. They only become invalid if the invalidity is successfully challenged on complaint within the time limit.
In addition to the formalities, content-related aspects could also be problematic. When interpreting the will, the hypothetical or presumed will of the person making the disposition is taken into account as far as possible.
Simple spelling mistakes or arithmetical spelling mistakes do not usually pose any problems as long as the will of the person making the decree is still apparent. In the case of contradictory and unclear passages, there is a risk that the testator’s presumed will may be misinterpreted by a court. If, on the other hand, there are very serious grammatical errors and spelling mistakes that are untypical for the person making the disposition, doubts may arise as to the testamentary capacity and the will may be invalid.
Mr. Fischer’s will is formally flawless. After his death, he leaves a sum of money amounting to CHF 100,000. The will contains the following information: “My two daughters shall inherit in equal shares and shall each receive an amount of CHF 60,000 in cash.”
It is clear that Mr. Fischer has made a calculation error. Since it is clear from the interpretation that Mr. Fischer wanted to treat both children equally, they will each receive CHF 50,000. Neither of the daughters need bring an inheritance action, and the will is valid.
Note: As long as the errors can be corrected by interpretation, errors in content do not affect validity.
How can I avoid mistakes?
Since the person making the disposition can no longer be questioned about details, it is particularly important to ensure the accuracy of the will during the lifetime of the testator. This is the only way to divide an inheritance according to your personal wishes. The will generator can help you do this.
Depending on the case’s complexity, it is recommended to consult a lawyer or a notary in order to verify the validity of the will. Otherwise, there is a risk of conflicts within the family and/or the community of heirs. If you are unsure about your will and need assistance, we would like to draw your attention to our free initial consultation.