What is the severability clause?
The severability clause is an important legal provision in Swiss law. contract law. Its function is to, to maintain the validity of contracts, even if individual provisions are invalid or void. It is therefore also referred to as a “preservation clause”. The severability clause ensures that the document as a whole remains valid, even if individual provisions are not enforceable.
The Swiss Civil Code (ZGB) and Swiss inheritance law do not explicitly provide for such a severability clause. Instead, the validity of wills is protected by the
Why is the severability clause important?
A defective ruling is upheld and deemed valid if it can be supplemented or replaced by interpretation.
The standard wording “Should one or more provisions of this will be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a provision that comes closest to the economic and legal purpose of the invalid provision.” used.
This clause also allows for some flexibility by providing that if a provision is invalid, a replacement provision that comes closest to the intended purpose of the original provision will take effect. However, depending on the circumstances, it is advisable to choose not just a standard wording, but an alternative
An example case: Hans Müller is widowed and has a daughter with whom he is in dispute. In his will, he therefore bequeaths his entire estate to his friend Albert. Due to the statutory compulsory portion to which his daughter is entitled, this provision would actually be invalid. However, if a severability clause is included in the will, as in the example above, a legally compliant solution is sought that most closely reflects his wishes. In this case, his daughter would probably receive the compulsory portion and Albert would receive the remainder (the available quota).
Practical tips:
It is important to formulate the severability clause clearly and unambiguously so that its effectiveness can be guaranteed in the best possible way and the will or the disposition under inheritance law can be upheld.
It is therefore advisable to consult a legal expert when drawing up wills or testamentary dispositions. In this way, you can ensure that your last will and testament is appropriate for your circumstances and concerns and that the legal requirements, including a severability clause, are met.
Important: The severability clause must be clearly distinguished from the privatory clause. The privatory clause is used to “protect” the testamentary dispositions and to lend them emphasis. To this end,
However, it should be noted that a privatory clause cannot protect immoral or unlawful instructions in a will. Here, too, you should therefore pay close attention to the