The Swiss Civil Code provides for three ways to issue a unilateral testamentary disposition. These are: the handwritten will, the (oral) emergency will, and the notarised will. The procedure is regulated in the ZGB in principle, but takes place in the presence of authenticating officials under cantonal law. This allows the legislature to guarantee a notarisation that is standardised throughout the confederacy and is valid in all of Switzerland.
During notarisation, the authenticating official records the final wishes as stated by the testator under the cooperation of two witnesses in an official document. This must be dated and signed by both the testator and the authenticating official. The witnesses confirm by their signatures that the testator has declared in their presence that the deed reflects the testator’s final wishes. Therefore, it is not imperative that they be familiar with the content of the will.
Does the notarised will take precedence over the other types?
The various types of wills mentioned above have equal status. So none of them can make a generalised claim of priority over the others. It is true that notarisation probably has a more specific evidentiary function and guarantees optimal legal certainty when reviewed by expert authenticating officials. However, a notarised will can be blocked by another testamentary disposition that contradicts it. This means the more recent testament will take precedence.
Advantages of the notarised will
Since notarisation incurs fees and the expense of an appointment with a notary or another official channel, it is chosen less frequently than the handwritten testament. But when it comes to expressing the testator’s final wishes, it can be worth it to invest in a deed that, due to the qualified procedure it entails, offers particular legal certainty: first, the people entrusted with the notarisation have a thorough knowledge of the applicable law. This means they can recognise and avoid deficiencies in a testamentary disposition. This simplifies the inheritance process and prevents the testator’s final wishes from being invalidated by an action for annulment.
Second, the authenticating officials are obligated to keep the dispositions (either in the original or a copy) or to hand them over to a competent government authority for that purpose. In this way, the legislature wishes to ensure that the notarised will can be properly opened for the heirs when the testator dies. If the testator stores a handwritten will in an unknown or sealed location, or if the will is misappropriated, the will might not be opened, meaning the testator’s wishes might not be realised. And this might lead to a different succession. Like the handwritten will, the emergency will guarantees little security compared with the official document.
So notarising your final wishes can be worth it, especially if the inheritance or asset situation is complex. It also avoids certain potential problems. At DeinAdieu.ch, you can find a register of inheritance law specialists in Switzerland.
A notarised will is drawn up by special authenticating officials, in the presence of witnesses, using a standardised procedure. This makes it particularly secure. On the other hand, it costs more than a handwritten will. In return, a notarised will offers a greater guarantee than a handwritten will that its form is valid, its content affords legal certainty, and that it will be opened correctly.
The chief points, in brief:
- A notarised will requires two witnesses. Those witnesses must sign the will to confirm that its content matches your final wishes.
- In principle, the different types of wills enjoy equal status. Due to the official notarisation process, however, a notarised will affords greater legal certainty. Think about which type of will is best for you.