Lawyer Monthly has had the pleasure of hearing from Swiss attorney Cecile Ringgenberg, who provides an overview of how wills are shaped in Switzerland and what has changed since the new law came into effect on 1 January 2023.
Under what circumstances may a foreign national establish a Swiss will?
If a foreign national has his last domicile in Switzerland, the judicial or administrative authorities of this domicile are competent to deal with the inheritance procedure, except regarding his immovable property located outside Switzerland, if the state of location claims exclusive competence. (Lex rei sitae)
(Art. 86 Federal Act on International Private Law)
If a foreign national does not have his last domicile in Switzerland, but at the time of death owns property located in Switzerland, the Swiss judicial or administrative authorities of the place where the property is located are competent to deal with the property to the extent that the competent foreign authorities do not deal with it. This applies to movable property (bank accounts) and immovable property (real estate) located in Switzerland.
If several properties and procedures exist in several countries, the procedure takes place in Switzerland if it was first to open the inheritance procedure.
(Art. 88 Federal Act on International Private Law)
However, even if the Swiss judicial or administrative authorities are not competent to liquidate the inheritance, they are competent to take the necessary provisional measures for the protection of the portion of property located in Switzerland,
(Art. 88 Federal Act on International Private Law) Finally, if the inheritance procedure takes place in a country which, like Switzerland, has ratified the Hague Convention on the conflicts of laws relating the form of testamentary dispositions of 6 October 1961, the Swiss will will be valid in the foreign inheritance procedure at least as to its form.
Bilateral conventions between Switzerland and other countries should be examined in this respect before establishing the bill.
If several properties and procedures exist in several countries, the procedure takes place in Switzerland if it was first to open the inheritance procedure.
What law is applicable in the Swiss inheritance procedure?
In principle, Swiss law is applicable to the Swiss inheritance procedure.
However, the foreign national may pronounce a ‘professio iuris’ in his Swiss will submitting his inheritance to the law of his national state, even if the inheritance procedure takes place in Switzerland. This will avoid the application of the compulsory portion (see below) in the Swiss inheritance procedure, leaving the foreign national free to dispose of his assets to whom he wants, an outcome accepted by the Swiss Federal Court.
(Art. 90 al.2 Federal Act on International Private Law) (Swiss Federal Court Decision, 102 II 136)
Furthermore, the ‘professio iuris’ will avoid the application of several laws to an inheritance if the inheritance procedure takes place in several countries, thus avoiding incoherencies and supplementary costs.
Nevertheless, it must first be determined if the law of the national state concerned accepts a ‘professio iuris’ and under what conditions it is accepted.
(Art. 90 al. 2 Federal Act on International Private Law)
What kinds of disposition are permitted under the Swiss law of inheritance?
Public Will (Art. 499 Swiss Civil Code)
The testator mandates a notary public or another designated official and communicates his will to the notary or the official in the presence of two witnesses. The document thus established is dated and signed by all present and registered in the acts of the notary or the official.
Handwritten Will (Art. 505 Swiss Civil Code)
The testator writes his will by hand from the beginning to the end indicating place, year, month and day of the writing, signs it by hand and deposits it at the place indicated by the Cantonal law.
Oral Will (Art. 506 – 508 Swiss Civil Code)
The oral will is an emergency solution taking place in front of two witnesses, if the testator is incapable to proceed with a public or handwritten will in cases such as imminent death, breakdown of communications or epidemy. One of the witnesses writes down the contents and notes the place, year, day and hour and the circumstances of the incapacity, writing to be signed by the other witness. The witnesses deposit the writing without delay at the competent judicial authority.
The oral will loses its validity 14 days after the testator has recovered his capacity and is again able to proceed with a public or handwritten will.
In principle, Swiss law is applicable to the Swiss inheritance procedure.
What is the ‘compulsory portion’ and how does it affect the will?
The content of the will is limited by the compulsory portion of the part of inheritance of close legal heirs.
It may only be eliminated by disinheritance due to grave circumstances (Art. 477 Swiss Civil Code) or if the person entitled to the compulsory part has renounced on his right in a pact of inheritance in the form of a public will.
Art. 512 Swiss Civil Code)
Without disinheritance or renunciation, the testator can only dispose within the available quota and respecting the compulsory portion.
The reduction/elimination forms the main part of the present revision of the Swiss law of inheritance entering into force on 1 January 2023 (see below).
What role do executors play?
The testator may appoint one or several executors to execute the will and to administer the inheritance by using the same form in which the will was established.
The executor has the same rights and duties as the official inheritance administrator.
The appointment of an executor is especially warranted in large and complex inheritances with an international aspect and legal problems that the heirs may not be able to solve themselves. Also, their inability to reach the unanimous decisions required to administer and finalise the inheritance may be a reason to appoint one or more executors.
(Art 518 and 554 Swiss Civil Code)
What can effect a revocation of the will?
The will may be revoked at any time by using the legal form in which it was established.
If a new will replacing the old will is written, it is recommended to expressly revoke the old will in the new will.
(Art. 509 ff. Swiss Civil Code)
What impact has the recent revision of the Swiss law of inheritance had on wills?
The purpose of the revision of the more than 100-year-old Swiss law of inheritance is to enable the law to embrace today’s new forms of life and relationships, such as partnerships outside marriage, serial relationships and patchwork families, following the mounting number of divorces.
(Art. 470-472 Swiss Civil Code)
The revision is mainly concerned with the reduction or elimination of compulsory portions of legal heirs. It will permit to better consider non-married partners – who even under the new law are still not legal heirs – as well as step-children and more. It will also leave more room for charities.
Furthermore, it will allow for a greater part of a family enterprise to be transmitted to the heir willing to take over the enterprise, while hopefully enabling him to respect the now reduced compulsory portions of the other heirs. This may help to avoid the compelled sale of family enterprises in order to permit the lawful partition of the inheritance, as this was often the case up to now.
The newly introduced reductions and eliminations of the compulsory portions are the following:
Descendants
The descendants formerly had a compulsory share equivalent to three quarters. They now have a compulsory share of one half of their part of the inheritance.
(Old Art. 470 and 471 / New Art. 470 and 471 CCS)
Parents
The parents formerly had a compulsory share of one half. They have now no compulsory share at all.
(Old Art. 470 and 471.2 / New Art. 470 and 471 CCS, no longer mentioning parents at all)
Spouses During a Divorce Procedure
Should a spouse decease during the divorce procedure, the surviving spouse will lose his or her compulsory share of one half in the joint inheritance, provided the divorce has been jointly introduced and the spouses have lived separately for at least two years. It is noted that the surviving spouse’s compulsory share of one half otherwise remains untouched.
(New Art. 472 CCS)
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How are existing wills affected by the revision?
The principle is that existing wills stay valid after the new law comes into effect. However, as the new law applies from 1 January 2023, the testator may want to decide if he wants to revoke his existing will and write a new will seizing the opportunity to distribute his assets more freely under the new law.
Also, the existing will may not be clear as if it refers to the then-existing compulsory portion or if it may be replaced by a new revised compulsory portion. Therefore, it is recommended to review the existing will in any case in order to see if it should be retained or replaced by a will under the new law to clarify the situation.
Cecile Ringgenberg, Attorney at Law
Rue Michel-Chauvet 3, 1208 Genève, Switzerland
Tel: +41 22 347 52 53
E-Mail: cecile.ringgenberg@ringlaw.ch
Cecile Ringgenberg practices at the Bar of Geneva in Switzerland. She is a doctor of law of Zurich University with several years of practice in international humanitarian law at the ICRC in Geneva and in Africa, as well as three years of practice in the law of international organisations at the European Organization for Nuclear Research (CERN). Among her achievements are a decision on documentary credit obtained with a colleague at the Federal Tribunal, making jurisprudence (BGer 4C.66/2004 of 01.06.2004), and her successful representation of victims in numerous international investment frauds.
