What legal requirements must a will fulfil?
A will (also known as a “testamentary disposition”) is a document of major legal and practical significance. In it, a testator dictates what is to happen to the assets they leave after they pass away. These decisions can theoretically be changed or cancelled at any time during the person’s life with a new will. After death, however, they are ‘final’. They can be altered only through contracts or complaints raised among the beneficiaries. But the testator has only a limited influence on this.
That is why the law of succession in the Swiss Civil Code (ZGB) sets forth three different types of requirements for the validity of a will in order to protect all parties. These requirements apply to the testator him or herself (person), the form of the will and its contents.
Personal requirements of the testator
In terms of the individual, any person who wants to draft a valid will must be of sound mind. The person must also have passed their 18th birthday, i.e. they must be an adult. A person who fulfils both requirements is considered to have testamentary capacity.
As a rule, the more serious issue is being of sound mind, i.e. power of judgment. In essence, this means the ability to act sensibly and assess the consequences of one’s own actions. It is basically considered a given, but can be temporarily or permanently lacking. A frequent reason for limited mental capacity is the influence of alcohol or medications. Physical or neurological disorders such as dementia can also limit one’s mental capacity. If doubts exist about whether someone is suffering from dementia, medicinal and legal reports can help establish their mental capacity.
Disposing capacity or testamentary capacity is different than one’s ability to inherit. Testamentary capacity is the ability to pass on assets via a will. ‘Ability to inherit’, on the other hand, means the ability to receive assets by way of inheritance. Basically, any person is capable of inheriting as long as they are not excluded from participating in an inheritance for legal reasons (such as having been deemed unworthy to inherit).
Formal requirements of a will
There are three formally recognised ways to draw up a valid will: holographic, public deed and oral will.
The simplest and most common option is the holographic will. It must be written in the testator’s own hand from start to finish and signed at the bottom. The date on which it was drawn up must be indicated using the year, month, and day. If it is not written entirely by hand, or the signature is missing or in the wrong place, the will can be challenged by an invalidity claim. It’s not a problem if only the date is missing. This must be reconstructed using other means or must be unimportant for considering the last will and testament.
A will by public deed is safer but more expensive. It must be drawn up in a special procedure by an authenticating official (‘Urkundsperson’) under cantonal law. This is usually a notary. To do this, the testator communicates their last will to the notary in the presence of two witnesses. The testator’s wishes are set forth in a deed and confirmed with the signatures of the witnesses present. A will by public deed is kept on file by the notary or a cantonal authority. The main advantage of this procedure is that it can help avoid errors or grounds for invalidity. Moreover, the last will and testament will be filed so that it is easy to locate.
The third option is an emergency solution : in “exceptional circumstances” it is possible to draw up an oral will in the presence of two witnesses. But since it is subject to strict requirements and its effectiveness is limited, that form is hardly used in practice.
Content-related requirements of a will
The law also regulates the content of a will, setting forth what dispositions are permitted in it. The main mandatory rule applies to what is known as the statutory entitlement. This was revised as of January 1, 2023, resulting in greater freedom of disposition. From this date on, only descendants, spouses or registered partners are eligible for a statutory entitlement. This amounts to half of the statutory proportional entitlement and may not be denied to them. An interim provision applies to older wills.
There are two main situations in which it is possible to bequeath amounts that are less than the statutory proportional entitlement: First, there is disinheritance on special, serious grounds. The second case is when a waiver of inheritance has been agreed upon with the beneficiary entitled to the statutory proportion. In this case, the beneficiary agrees to accept a lower amount in a special form.
There are also additional limits on the content, although they do not specifically affect inheritance law and wills. For instance, the testator can only dispose of assets to which she holds real rights. For example, it is impossible to inherit a loaned car, since it belongs to someone else. Likewise, a clause in the last will and testament cannot be tied to an impossible, immoral, or unlawful requirement or condition. No one should use a testamentary disposition to encourage anyone to do anything the legal system disapproves of or will punish.
If the content of a will does not fulfil the content-related requirements, this can have various consequences: If statutory entitlements are contravened, the people affected can pursue an action in abatement in order to rectify the situation. In other cases, the will can usually be challenged with an invalidity claim or a declaration of invalidity claim. There are also additional claims for special cases.
Only if the last will and testament meets statutory requirements in all three respects – personal, form, and content – is it valid and can stand up to contestation. Even if a last will and testament does not meet certain requirements, it can still be fully or partially effective. For it to be declared invalid, it must be successfully contested at first. If this does not occur, for various reasons, a last will and testament containing errors can still be effective. For example, errors might be overlooked, or interests might not be asserted within the deadline for bringing an action, which would mean the last will and testament was validly formed.
It is very rare that competent authorities will consider a last will and testament null and void ex officio and without being asked to do so. This occurs only if deficiencies are particularly severe. If the originator of a last will and testament cannot be determined, for example.
How do I use the DeinAdieu.ch will generator?
Want to draw up your will the easy way with the DeinAdieu will generator? Then continue with part 2 of this article.