When is a holographic will valid?
The holographic will is one of three forms set out in the Swiss Civil Code to unilaterally dispose of one’s estate, in addition to the will by public deed and the oral will. Since the oral will is only for exceptional circumstances and a will by public deed involves high costs for notarial services (see also: How do notary offices work in Switzerland?), the majority of Swiss people resort to a pen and paper to draw up their will. Since a will has extensive consequences for succession, the law of succession requires a kind of qualified written form in order for the will to be valid.
The holographic will not only has to be signed personally by the testator but also written by hand from beginning to end. This is intended to prove that the testator has indeed written his or her will in its entirety in accordance with his or her well-considered wishes and did not simply approve a proposal made to him or her. This is also a better way of preventing forgeries. In addition, the Civil Code requires the indication of the date (year, month and day) on which the will was drawn up.
Changes to the holographic will
Subsequent changes to a holographic will often create confusion. The different forms of will mentioned above enjoy equal status, meaning no form takes blanket precedence over another.
In principle, the most recent will takes precedence – which is why the date is an essential validity requirement. However, this principle can be set aside, e.g. if the testator verifiably had no testamentary capacity when he or she drafted the latest version. If the formal validity of a will fails exclusively on the date, it can nevertheless become legally binding, provided that the date of creation forms a validity requirement and it can be determined in another way.
It is also conceivable for a testator to add notes or comments to an existing will. The same qualified written form has to be respected and it is recommended that changes to the will are also signed and dated, for example by adding a comment at the end of the document stating “modified on DDMMYYYY”.
If you want to set aside a will, there are 3 options:
- revoking all or part of it
- destroying the deed
- creating a subsequent will.
If you create a subsequent will, it is important to explicitly state its relation to the earlier one. In case of doubt, the later will supersede the earlier, meaning revocation is presumed. Should the later will form merely a codicil to the earlier one, you must explicitly express this.
Storing the will
Firstly, it is necessary that the will can be read to the heirs. If the testator kept a holographic will at home without the relatives’ knowledge or the possibility of access, this is not self-evident. Therefore, the Swiss Civil Code stipulates that cantons must ensure that such wills can be forwarded, whether open or sealed, to an authority for safekeeping. If a death certificate is available, the authority may, ex officio, initiate the reading of the will.
How and when can a will be challenged?
If a will can be found but it is formally defective, it can be challenged by any interested heir or legatee (which does not mean that the will is invalid per se). This also applies if the testator lacked testamentary capacity at the time the will was created, if the will is the product of a lack of free will, or if the will’s content is immoral or unlawful. The right to bring an action of declaration of invalidity expires one year after the contesting party learned of the ground for nullity or ten years after probate proceedings commence.
Even if a will is correct, it can still be contested by bringing an action in abatement up to a certain point. This is the case if the distribution by the testator violates the protected statutory entitlement of certain heirs. Getting expert advice is the most effective way to prevent such issues with a holographic will from arising. DeinAdieu.ch provides the right solution in the service provider directory.
The holographic will is the “classic” and most frequently chosen form of testamentary disposition in Switzerland. In order to be valid, it must be handwritten from start to finish (in ink or another material that is not easily erased) and must contain the signature of the testator and the date on which it was drawn up. These requirements must also be respected if the will is amended or revoked. If any of the requirements is not met or if the will has other defects, it can be challenged in the courts. To ensure that the will can be read, it is advisable to keep it in an easily accessible place at home or, even better, deposit it with a cantonal authority.
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