An inheritance contract is a hybrid form between an obligation inter vivos and a disposition mortis causa. As the name makes clear, it is a contract. Unlike a last will and testament (unilateral disposition), the contract must also be signed by the heirs (multilateral obligation). For the signature to be valid, the people must have the capacity to act. Accordingly, they must be at least 18 years old and of full mental capacity – in other words, able to act reasonably. Furthermore, an inheritance contract must be notarised. The contracting parties must then go to a public official under cantonal law and have the inheritance contract recorded in a deed under the supervision of two witnesses. As a result, an inheritance contract offers the participants great legal certainty.
Inheritance contract: possible content
Under the principle of freedom of contract, the parties can determine the contents freely within certain limitations. The layout options for an inheritance contract are broader than those for a last will and testament. Although it is mandatory that a last will and testament provide for the compulsory portions, an inheritance contract can provide for less and still be valid if the consent of the person concerned is obtained. Heirs who are entitled to a compulsory portion (children, for example) may disclaim their inheritance to the benefit of the surviving spouse or registered partner.
The same formal requirements must be met to rescind, supplement, or amend an inheritance contract as to draft one. This results in a very stable but somewhat rigid construct. Consequently, this type of disposition might prevent the relationships between the contracting parties (which can change rather quickly) from being adequately considered, for example. Unlike a will, which can be unilaterally amended, a contract cannot be validly altered without the consent of all its parties.