Why should a will be certified by a notary?
First of all, a will can be drawn up in one of three forms:
The will by public deed is drawn up with the assistance of a notary and two witnesses. Furthermore, the confirmation of the testator’s capacity of judgement in the deed makes it more advantageous compared to a holographic will. If there are doubts about the testator’s capacity of judgement, the witnesses can confirm the testamentary capacity with their signature. This avoids any invalidity claims in the future.
What happens during the certification process?
The notary first begins with the preliminary proceedings, during which the notary explains to the testator what will happen in the proceedings and prepares the main proceedings. In the main proceedings, the notary draws up the contents of the will. Then the testator reads and signs the will, thereby giving his or her consent. The next step is for the notary to date and sign the will.
Now the testator must declare in the presence of the two witnesses and the notary that he or she has read the document and that it contains his or her will. In the next step, the witnesses must sign the deed and in so doing confirm that the testator made said declaration in their presence and that he or she was in full possession of testamentary capacity. Now, the certification process of a will is complete.
Reading out the will by the notary when the testator cannot
If the testator cannot read the will himself or herself for any reason (e.g. physical impairment) as explained above, the notary can read out the will in the presence of the two witnesses. After, the testator declares that the deed contains his or her will. If the notary reads out the will, the witnesses acknowledge the contents of the will. This is the reason why the witnesses and the notary are subject to a duty of secrecy as part of the certification process.
What are the alternatives to notarial certification?
- The will must be written in the testator’s own hand from start to finish,
- and must be dated and signed by the testator. If even a part is written by someone else or typed on a computer, that part is invalid.
- Each person must draw up their own will. If, for example, a wife would like to draw up a will, she can only do so for herself. She cannot draw up the will together with her husband. If she would like to include her husband or other persons as contractual parties in her will, she could enter into a contract of succession.
What else is there to consider?
The will should be deposited with the competent authority. In the canton of Zurich, this would be the notary offices. These authorities keep inheritance contracts and wills safe. This ensures that they can be opened in the event of death and that the heirs are informed. It also prevents them from being lost or damaged. An alternative to this is storing the will with a person the testator trusts.
Have you already given it some thought?
- Which form of will (holographic will or will by public deed) would you prefer?
- Bear in mind that you must comply with the formal requirements of the kind of will you choose. Otherwise, it will be declared invalid later on.
- Think about where you would like to store your will so that it can be found quickly in the event of death. Would you consider someone you trust?