Favoring the lawyer in the will

A relationship based on trust is an important factor in the special relationship between lawyer and client. In some cases, this relationship of trust even extends beyond death – to such an extent that the lawyer should be favored by a will or inheritance contract. Based on a number of precedents, Swiss case law has been able to identify factors that are decisive for assessing the admissibility of inheritance benefits to lawyers. These also apply mutatis mutandis to other legal professionals in a comparable position, namely Notaries public.

Is it permissible to include a lawyer in the will?

An important principle of inheritance law is that of freedom of disposal: in principle, the testator is free to decide to whom they wish to give which assets from their own estate. There are hardly any restrictions with regard to the group of possible beneficiaries – heirs, legatees and beneficiaries of legacies. Legal entities can be beneficiaries in the same way as natural persons; although animals cannot inherit in the strict sense, the law even provides a separate solution for them.

The most important barrier to freedom of disposition is the right to a compulsory portion: descendants and spouses of the deceased can use an action for reduction to claim a share of the estate to which they are mandatorily entitled. Beyond this – to the extent of the so-called free or disposable quota – testators can favor whomever they wish through a will or inheritance contract.

This naturally also applies to lawyers, although their professional activity is only relevant if it is causally linked to the gift. In other words: If, for example, a grandfather bequeaths his granddaughter his house and the granddaughter happens to work as a lawyer without advising or representing her grandfather legally, it does not matter what profession she has – she could just as well be a doctor, computer scientist or teacher. A lawyer who does not advise or represent the testator can be a beneficiary under inheritance law without any special challenges arising.

The characteristic feature of a lawyer’s mandate – and the critical point in relation to preferential treatment under inheritance law – is the special relationship of trust that generally exists between the parties. This is offset by the risk of conflicts of interest when significant assets are at stake. As will be shown shortly, this is the root of the problems that can arise in the event of the lawyer benefiting under inheritance law.

Under what circumstances is there a particular risk of conflicts of interest?

Pursuant to Art. 12 lit. a to c of the Federal Act on the Free Movement of Lawyers (BGFA), lawyers must exercise their profession carefully, conscientiously and independently and avoid any conflict of interest in relation to their clients. Whether these professional duties are complied with or breached in individual cases cannot be determined in general terms, but must be determined on the basis of the specific circumstances.

In a legal dispute from 2006, a wealthy widow appointed her lawyer as her sole heir, whereupon the corresponding will was successfully contested after her death by the beneficiary from an earlier disposition. The following circumstances in particular were decisive for the annulment of the benefits to the lawyer:

First of all, the Federal Supreme Court stated that a lawyer and advisor in inheritance law matters who is himself appointed sole heir can no longer offer neutral and independent legal advice and is obviously in a serious conflict of interest. Due to his knowledge advantage in matters of inheritance and professional law as well as his duties of loyalty and care towards the vulnerable, elderly client, who was largely isolated from third parties, he would have been obliged to convince her of the inadmissibility and inappropriateness of the estate settlement made and to show her other solutions. At the very least, however, he should have informed her of his conflict of interest and recommended independent advice.

Contrary to this, however, he had exploited the existing relationship of trust and dependency and helped to further isolate the testatrix. In the end, he even took the will that favored him with him, so that the testatrix could no longer destroy it or could only revoke it or replace it with a new one with considerable difficulty.

Although this constellation may be a particularly shocking case, some lessons of general relevance can be derived from it:

• The more extensive the favoritism of the lawyer or notary involved, the more a serious conflict of interest can be assumed, which impairs the independence and neutrality required by professional and ethical law.
• The more confusing and complex an inheritance case is – and the more expertise it therefore requires – the less it can be assumed that the testator will be able to gain an independent overview of the circumstances and make well-considered decisions. In such cases, the professional’s duties of loyalty, due diligence and disclosure are more far-reaching than in simple constellations.
• The more vulnerable the testator is due to her age, mental state, social isolation or other limitations, the greater the risk that these will be exploited. In such circumstances, the involvement of neutral third parties seems advisable. The advice must not be provided solely by the person to be benefited and therefore in a conflict of interest.
• Finally, the testator’s freedom of choice must be maintained and promoted as far as possible. In particular, this means that she must be able to revoke a problematic disposition in favor of a lawyer or notary at any time or replace it with a new one. Any conduct on the part of the beneficiary that could be aimed at preventing this appears inadmissible in the light of the case law of the Federal Supreme Court.

It is not only a benefit to a lawyer or notary themselves that can be problematic, but also the favoring of persons close to them. Due to personal and financial ties, the required independence of the professionals may also be impaired in these cases. Caution is always required if they have to step aside due to (the appearance of) personal involvement. This is particularly the case if they themselves, their partners, fiancés or spouses, registered partners, their relatives and in-laws up to and including the third degree, their adoptive, foster or step-parents or children are personally involved in the matter.

What can heirs do if they do not agree with a testamentary favoritism of the lawyer?

In the event of a breach of the above-mentioned principles, the heirs can challenge the relevant disposition if the legal requirements are met. The law offers the heirs two options: an action for invalidity and an appeal on the grounds of the beneficiary’s unworthiness to inherit.

However, this does not exclude the possibility that other grounds for contestation may be fulfilled in individual cases (e.g. formal defects in the disposition, the testator’s inability to dispose, breach of the compulsory portion, etc.).

The heirs can file the action for invalidity if the grounds for invalidity pursuant to Art. 519 et seq. ZGB are fulfilled. The law lists lack of intent, immorality or illegality of the testamentary disposition as possible grounds for invalidity . If the court approves the claim, this leads to the complete or partial annulment of the defective disposition. It is replaced by an earlier disposition or the legal succession. Any person who, as heir or beneficiary, has an interest in the disposition being declared invalid may bring an action; the action is directed against the beneficiary of the disputed disposition. If the action is not brought or not brought within the time limit, the defective disposition remains in force and the beneficiary can claim their benefits.

• In particular, any error that causes the disposition can be considered a lack of intent: this is the case if the testator had a misconception about the relevant circumstances and would not have made any instructions or would have made different instructions if she had been aware of the actual circumstances. If the testator was unaware of the conflict of interests and the lawyer’s true (enrichment) intentions and would have made a different testamentary disposition had she been aware of this, the disposition is contestable. The – usually very difficult – proof of the lack of knowledge and the hypothetical deviating disposition must be provided by the plaintiff who demands the declaration of invalidity.
• The immorality or illegality of the content of the disposition relates to the benefit as such or the intended result, not the motive for the benefit. As a ground for invalidity, it always relates to the conduct of the testator and not to that of the beneficiary – for the latter, the grounds of unworthiness to inherit are decisive (see below). A testator who favors a lawyer under inheritance law will rarely violate applicable law (cf. the comments above on freedom of disposition) and will hardly be guilty of immoral conduct, especially as she often appears to be a “victim” rather than a “perpetrator” under the circumstances.

The most promising solution for disadvantaged heirs is therefore to invoke the principle of unworthiness to inherit of the beneficiary lawyer or notary: anyone who has fraudulently induced or prevented the testator from making or revoking a disposition of property upon death is unworthy to acquire anything from such a disposition.

This was also affirmed in the above-mentioned leading decision of the Federal Supreme Court: There, the lawyer had prevented the testatrix from revoking the disposition favoring him by deliberately exploiting the existing relationship of dependency, by failing to provide any clarification and by taking the will with him. He was therefore declared unworthy of inheritance on the basis of his conduct, which was considered fraudulent overall.

However, it should be noted that the element of fraudulent intent cannot be considered to be fulfilled lightly. Not every dubious behavior of a beneficiary person of trust justifies declaring them unworthy of inheritance. Rather, the totality of the circumstances must objectively indicate that the beneficiary has intentionally and unlawfully exploited the weakness of the other party to enrich himself or his relatives. In less clear-cut cases than the one described, this can be quite difficult to assess.

In the interests of legally secure estate planning and a clean look, it is therefore advisable to involve independent third parties if a lawyer or notary is to be a beneficiary under inheritance law. In order to comply with the requirements of professional law with regard to due diligence and fiduciary duties as well as independence, the beneficiary professional is also strongly advised to thoroughly review their mandates for the deceased and, in case of doubt, to resign, assign them to office colleagues or at least put them on hold until further notice.

More articles on this topic

• Specialist lawyer – notary: What is the difference?
• Do I need a lawyer or notary for the estate?
• Possible problems when writing a will