6 October 2023
In a recent decision, the Swiss Federal Supreme Court emphasised the importance of the statutory formal requirements in inheritance law, once again highlighting the hurdles that those unfamiliar with the law must overcome in order to dispose of their estate in a legally valid manner.
If a person wishes to dispose of his or her property by means of a will without the assistance of a notary, the will must be handwritten from beginning to end and must be dated and signed in accordance with Art. 505 of the Civil Code. If a handwritten will does not meet these requirements, it is invalid. So much for the theory.
But what happens if the will is handwritten, but the testator's signature is not on the will itself, but on the envelope containing the handwritten will, which the testator personally handed over to the responsible office for deposit? This is precisely the question that the Swiss Federal Supreme Court had to deal with in its decision 5A_133/2023 of 19 July 2023.
The Federal Tribunal essentially dealt with two questions: Is the statutory signature requirement already satisfied by the introduction of the will with the sentence "I, Magrit Muster, born 1.1.1953 in Lucerne, hereby dispose of my estate"? Or is the signature on the envelope sufficient to comply with the statutory formal requirements?
According to the Federal Supreme Court, the signature, as a formal requirement, serves as an external sign by which the testator indicates to third parties that her will is to be given legal effect and that the contents of the document reflect her last wishes. Reiterating its previous case law, the Federal Supreme Court confirmed that the signature can only fulfil this function if it represents the conclusion of the testamentary disposition ("last will"). Thus, the mere mention of the testator's name at the beginning of the document is made at a time when the testator cannot know whether she will conclude the document, which means that the testator's name at the beginning of the document is not sufficient to meet the requirement of a signature.
But what about the signature on the envelope? The Federal Supreme Court stated that an envelope is, in principle, capable of establishing a physical link between the signature affixed to it and the document it contains, a link which is reinforced by the fact that the envelope is sealed. However, such a physical connection is not sufficient in itself to qualify the signature on the envelope as an expression of the testator's intention to conclude the contract. The additional inscription "last will" on the envelope in the present case also failed to establish the connection between the signature and the contents of the envelope as required by the Federal Supreme Court. Moreover, since the required connection had to result from the document itself, a last will could not be inferred from the external fact that the testator had personally delivered the will, written in her own hand, to the responsible office for deposit.
The recent decision of the Federal Supreme Court shows once again that in inheritance law even one wrong decision can have far-reaching consequences. Our notaries will be happy to assist you with their expertise and advise you in detail on the drafting of your will.
