Holographic will

The holographic will is a form of testamentary disposition that is very widespread in Switzerland. Drafted entirely by hand by the testator, this document allows them to express their last wishes in a simple and personal manner. Although it may appear easy to draw up, the holographic will is subject to strict rules laid down by the Swiss Civil Code in order to guarantee its authenticity and validity. Its importance in the transmission of assets and the settlement of the estate makes it a major legal act, the scope and subtleties of which deserve to be examined in detail in the context of Swiss inheritance law.

Definition and characteristics of the holographic will

A holographic will is defined as a unilateral act by which a person, known as the testator, expresses his or her last wishes concerning the devolution of his or her property after his or her death. Under Swiss law, this form of will has several distinctive characteristics:

• It must be entirely handwritten by the testator.
• It must be dated and signed by the testator.
• It does not require the intervention of a notary or witnesses.
• It can be written on any medium (paper, cardboard, etc.)
• It can be modified or revoked at any time by the testator

The apparent simplicity of the holographic will makes it an attractive option for many Swiss people who wish to organize their estate. However, this form of will also involves risks related to its drafting and conservation.

Conditions of validity

To be valid under Swiss law, a holographic will must meet certain strict formal conditions:

• Handwritten: the entire will must be handwritten by the testator. The use of mechanical or electronic means (typewriter, computer) is not permitted.
• Date: the will must be dated precisely (day, month, year). The date makes it possible to determine the testator’s capacity at the time of drafting and the chronological order in the case of multiple wills.
• Signature: the will must be signed by the testator. The signature must appear at the end of the document to cover all the provisions.

Failure to comply with these conditions may result in the will being declared null and void, hence the importance of being fully aware of the rules in force.

Content and drafting of the holographic will

The content of the holographic will is left to the discretion of the testator, within the limits set by law. It may include various provisions:

• Designation of heirs and legatees
• Allocation of specific assets
• Appointment of an executor
• Specific clauses (conditions, charges)
• Funeral instructions

When drafting, it is advisable to use clear and precise language to avoid any ambiguity of interpretation. The testator must ensure that the rules of Swiss inheritance law are respected, particularly with regard to the reserved portion of the heirs.

Tips for effective drafting

To guarantee the validity and effectiveness of the holographic will, here are a few recommendations:

• Use good quality paper and indelible ink
• Avoid erasures and additions in the margin
• Number the pages if the will has several sheets
• Clearly identify the beneficiaries (full name, date of birth)
• Describe the bequeathed assets precisely
• Include substitution clauses in case a beneficiary predeceases the testator

Careful and thoughtful drafting minimizes the risk of challenge and ensures that the testator’s wishes are respected.

Storage and revocation of the holographic will

The storage of the holographic will is of the utmost importance to guarantee its execution after the death of the testator. In Switzerland, several options are available to the testator:

• Personal storage: the testator can store his will himself, but this option involves risks (loss, accidental destruction)
• Official deposit: the will can be deposited with a competent authority (justice of the peace, notary) who will ensure its safekeeping
• Bank deposit: some banks offer services for the safekeeping of important documents, including wills

Whichever option is chosen, it is crucial to inform a trusted person of the existence and location of the will.

Revocation procedure

The testator may revoke his holographic will at any time. The revocation may take several forms:

• Physical destruction of the document
• Drafting of a new will expressly cancelling the previous one
• Establishment of an act of revocation respecting the same forms as the holographic will

In the case of multiple wills, it is generally the most recent one that prevails, unless expressly stipulated otherwise.

Advantages and disadvantages of the holographic will

The holographic will has several advantages that explain its popularity in Switzerland:

• Simplicity of drafting and modification
• Free of charge, unlike the authentic will which requires the intervention of a notary
• Confidentiality assured until death
• Flexibility in content and form

However, this form of will also has significant disadvantages:

• Risk of errors in drafting that can lead to nullity or difficulties of interpretation
• Possibility of accidental loss or destruction
• Vulnerability to challenges (capacity of the testator, authenticity of the writing)
• Absence of legal advice during drafting, which can lead to provisions that do not comply with the law

The choice of a holographic will must therefore be carefully considered in light of the testator’s personal and financial situation.

Current implications and the role of lawyers

In the current Swiss legal context, the holographic will remains a widely used estate planning tool. However, the increasing complexity of family and financial situations raises new challenges:

• Increase in blended families requiring more elaborate testamentary provisions
• Internationalization of estates involving issues of private international law
• Development of philanthropy and bequests to charitable organizations

In the face of these developments, the role of lawyers specializing in inheritance law is proving increasingly valuable. Their expertise enables them to

• Analyze the testator’s personal and financial situation in order to propose appropriate solutions
• Draft complex clauses in accordance with Swiss law and the testator’s intentions
• Anticipate and prevent potential conflicts between heirs
• Ensure coordination between the will and other estate planning tools (inheritance agreement, donation, etc.)

The involvement of a lawyer, although not mandatory for a holographic will, can help to secure the transfer of assets and guarantee that the testator’s wishes are respected.

Legislative and case law developments

Swiss inheritance law is currently undergoing changes that may impact the drafting and interpretation of holographic wills:

• Discussions about the reduction of the reserved portion of the estate
• Debates on the adaptation of inheritance law to new family structures
• Case law on the interpretation of ambiguous testamentary provisions

These developments underline the importance of constant legal monitoring and a possible periodic review of existing wills to ensure that they comply with current law.

Ultimately, the holographic will remains a privileged legal instrument in Switzerland for organizing one’s succession. Its apparent simplicity should not, however, make one forget the legal subtleties surrounding it. Careful drafting, possibly with the assistance of a legal professional, makes it possible to take full advantage of this tool to ensure the transmission of assets in accordance with the wishes of the testator and the Swiss legal framework.