Am I bound by my will or inheritance contract?

The will is a highly personal and unilateral disposition. Swiss law does not recognize a joint will and does not permit, for example, that someone else determines whether and by whom the last will should be executed. If one wishes to adapt, change, or revoke their will, this can be done individually, provided the required formalities (public notarization or handwritten) are observed. But how does this work in the case of a marriage or inheritance contract that may have been concluded even with the involvement of descendants?

The marriage contract is an agreement between the spouses. Therefore, any amendment requires the involvement of both spouses. If one spouse loses their legal capacity (e.g., due to an accident resulting in a coma or due to dementia), the marriage contract can no longer be changed or revoked. However, the involvement of the descendants is not necessary, even if a combined marriage and inheritance contract was originally publicly notarized with the descendants. The descendants are only parties to the inheritance contract part.

In the case of an inheritance contract—whether or not involving the descendants—the question of amendability is not always straightforward. It often arises that the surviving spouse wants to redefine who will inherit the estate after the death of the second spouse. Can the wife only consider her relatives in her last will, or conversely, can the husband exclude the godchild of his wife as a beneficiary in his will?

The law, specifically Art. 494 para. 3 of the Swiss Civil Code (ZGB), states succinctly: "Dispositions of death that are incompatible with the obligations arising from the inheritance contract are subject to challenge." All dispositions of the testator that change in any form the contractual dispositions of death (limiting or expanding the circle of beneficiaries, altering inheritance shares, imposing additional conditions, etc.) are considered 'incompatible' with the inheritance contract, unless such a unilateral amendment option has been expressly reserved in the contract. The key question is whether the relevant clause in the inheritance contract was indeed intended to be binding or not, i.e., whether a later will is compatible with the inheritance contract according to the (presumed) intention of the first deceased. If the document is unclear, it shall be interpreted according to principles such as the theory of interests. From this, practice has derived the presumption that the second-deceased spouse is generally bound only concerning the heirs of the first deceased spouse, while still retaining the freedom to dispose of that part intended for their own relatives. If the extent of the binding effect is unclear or if a far-reaching binding effect arises from the contract, the surviving spouse must rely on the beneficiaries of the inheritance contract to agree to the amendment in a (publicly notarized) waiver of inheritance contract. If such a contract does not come into being, the prior inheritance contract does not automatically take precedence over the subsequently contradictory will; rather, the beneficiaries from the inheritance contract can (and must) contest the will within one year of the testator's death. Therefore, the will is not per se invalid or void, but rather contestable.

Our recommendation is therefore: Unwanted restrictions, ambiguities, and assumptions at a later time should be avoided with a clear formulation of the inheritance contract or by clarifying an existing inheritance contract. We support you with our expertise and experience as certified specialists in inheritance law.

Lucerne, July 13, 2021

Reto Marbacher