Quick Summary
- The capacity of judgment pursuant to Art. 16 ZGB is a mandatory requirement for the creation or amendment of wills or inheritance contracts.
- Dementia can lead to a gradual loss of judgment
- Invalid wills or inheritance contracts are contestable under Art. 519 ZGB
- An advance care directive (Art. 360 ff. ZGB) ensures representation in the event of incapacity of judgment
- Early notarization and medical documentation create legal certainty for dementia-related illnesses
Capacity as a basic prerequisite for testamentary capacity
According to Art. 467 of the Swiss Civil Code, only a person of legal age who is capable of judgment can draw up a will or conclude an inheritance contract. A person is capable of judgement if they can recognize the consequences of their actions and act in accordance with this insight. Capacity is generally presumed by law.
Capacity is assessed separately for each legal act (relative capacity). It must always be assessed in relation to the specific person, the specific act and the specific point in time. For “simpler” matters, the requirements for incapacity are lower. The requirements are higher for “more difficult” legal transactions.
Example: Mr. Müller’s cognitive abilities are limited due to his dementia. His current cognitive abilities still allow him to make everyday decisions without any problems. At the same time, he no longer has the ability to understand the impact that changing his will could have on his heirs and his family. As a result, Mr. Müller is no longer capable of making decisions in his estate planning, despite his continued capacity.
It is up to the plaintiff to prove that the deceased person is incapable of judgment. However, if the general experience of life suggests that the person is incapable of judgment due to age-related infirmity, the tables are turned: In such a case, the other party must prove capacity.
In the case of dementia in particular, it is very difficult in practice to assess when and to what extent a person has become incapable of judgment. This is particularly the case if the person concerned experiences so-called “lucid moments”. In such moments, the person has regained their capacity of judgment to a certain extent, despite suffering from dementia, and can legally act accordingly.
Contestation through the action for invalidity
A will that was drawn up in a state of lacking capacity can be contested by means of an action for invalidity (Art. 519 ZGB). Only persons who have an interest under inheritance law can bring an action. As a rule, these are legal or voluntary heirs and legatees. However, former heirs or legatees may also be able to sue under certain circumstances.
Example: Brigitte was appointed as an heir by her neighbor Marcus in his will on 5 December 2020. Due to a dispute, Marcus removed Brigitte from his will on July 20, 2023. Because Marcus was diagnosed with a severely progressive dementia in 2021, the question arises as to whether he was still capable of making a will in July 2023. Brigitte therefore decides to contest the will of July 20, 2023 by means of an action for invalidity. She can do this because she has an interest under inheritance law, even though she is no longer named as an heir in the will.
Precautionary measures in the event of impending dementia
Careful estate planning
If the first signs of dementia become apparent, it is advisable to have your testamentary and inheritance capacity checked and to discuss your wishes with trusted persons. A publicly notarized will in accordance with Art. 499 ff. ZGB offers increased legal certainty, as the notary checks the testator’s capacity and records this in the minutes.
Precautionary mandate as proof of trust
With an advance care directive in accordance with Art. 360 ff. ZGB, the person concerned can designate a natural or legal person to represent them in the event of incapacity in the areas of personal care, property care and/or legal transactions. This preserves self-determination and gives relatives clear instructions for action.
Medical support
If the illness progresses, a medical certificate of capacity (known as a lucidity certificate) can be issued at the time of the disposition. This precautionary measure makes subsequent challenges considerably more difficult and gives all parties involved legal certainty.
Patient decree
With a living will in accordance with Art. 370 ff. ZGB, the person concerned can specify which medical measures they consent to or do not consent to in the event of their incapacity. They can even designate a natural person to contact medical professionals and make decisions on their behalf if they become incapable of judgment.