How to write a holographic will

Writing a holographic will is a personal process that allows you to pass on your assets according to your wishes. In Switzerland, this handwritten document is of paramount legal importance. It offers the possibility of organizing one’s estate independently, without recourse to a notary. However, its validity depends on compliance with strict rules. This guide details the essential steps for drafting a holographic will in accordance with Swiss law, avoiding common pitfalls that could make it contestable. We will examine the formal aspects to be respected, the content to be included and the precautions to be taken to guarantee the execution of one’s last wishes.

Conditions of validity of a holographic will in Switzerland

Under Swiss law, the holographic will is governed by specific legal provisions aimed at guaranteeing its authenticity and validity. To be recognized as valid, this document must comply with several strict formal criteria.

Firstly, the will must be entirely handwritten by the testator himself. The use of a computer, typewriter or any other mechanical or electronic means is prohibited and would render the will null and void. This requirement is intended to ensure that the document does indeed originate from the person concerned and has not been drafted by a third party.

Secondly, the will must include the full date of its drafting, including the day, month and year. This date makes it possible to determine the testator’s capacity at the time of drafting and to establish the chronology in the event of multiple wills.

Finally, the will must be signed by the testator. The signature must appear at the end of the document, after the testamentary provisions, to certify that the testator approves the entire content.

It should be noted that these three elements – handwriting, date and signature – are cumulative. The absence of one of them would render the will null and void.

Form and presentation of the holographic will

Although no particular form is required for the presentation of the holographic will, it is recommended that certain rules be followed to facilitate its reading and interpretation:

• Use good quality, long-lasting paper
• Write legibly, preferably in indelible ink
• Number the pages if the will has several sheets
• Avoid erasures and additions between the lines
• Do not leave large blank spaces that could be used for fraudulent additions.

These precautions, although not mandatory, help to reinforce the credibility of the document and prevent possible disputes.

The content of the holographic will

The content of a holographic will must reflect the testator’s wishes concerning the transmission of his or her estate. Several key elements should be included to ensure clarity and effectiveness.

First, it is a good idea to start with an introductory formula that clearly identifies the document as a will. For example: “This is my will revoking all previous dispositions”.

Then the testator must identify precisely the beneficiaries of his bequests. It is recommended to use the full names, dates of birth and addresses of the persons concerned to avoid any ambiguity.

The designation of the bequeathed assets must be as precise as possible. For real estate, the exact address and, if possible, the cadastral references should be mentioned. For valuable movable property, a detailed description is desirable.

The testator may also include conditions or charges linked to the bequests. For example, he may stipulate that an asset will only be passed on when the beneficiary comes of age or on condition that he continues his studies.

It is possible to appoint an executor to ensure that the wishes expressed are carried out correctly. This trusted person may be a relative or a legal professional.

Specific provisions to consider

Some provisions deserve special attention:

• The reserved portion of an estate: Swiss law provides for a minimum share of the estate to be allocated to certain heirs (descendants, spouse). It is crucial to respect these limits to avoid subsequent disputes.
• Specific bequests: it is possible to bequeath specific assets to individuals or charitable organizations.
• Substitution clauses: these allow for alternatives in the event of the predecease of a beneficiary.
• Funeral arrangements: although not legally binding, these can be included to express your wishes.

Particular care must be taken when drafting these provisions to ensure that they comply with Swiss law and that they faithfully reflect the testator’s intentions.

Mistakes to avoid when drafting a holographic will

Drafting a holographic will may seem simple at first glance, but it involves many pitfalls that can invalidate the document or create conflicts between heirs. Here are the main mistakes to avoid:

Use of ambiguous or imprecise terms: The language used in the will must be clear and unequivocal. Vague formulations such as “I bequeath my assets to my loved ones” can give rise to differing interpretations and disputes.

Forgetting certain assets: An incomplete inventory of assets can leave certain assets without a specific allocation, which complicates the succession.

Failure to respect reserved portions of an inheritance: Ignoring the portions reserved by Swiss law for certain heirs can lead to actions to reduce the portion of the aggrieved heirs.

Illegal or impossible conditions: Certain conditions attached to bequests can be considered null and void if they are contrary to the law, to accepted principles of morality or impossible to fulfill.

Changes that do not comply: Any subsequent changes to the will must respect the same formalities as its initial drafting. Undated and unsigned additions or deletions will not be taken into account.

Additional precautions

To reinforce the validity of the will, it is recommended to:

• Avoid negative or vindictive wording towards certain heirs
• Not include provisions concerning property that is not owned
• Refrain from mentioning confidential information that is not relevant to the estate
• Regularly check that the contents of the will still correspond to your current wishes

If you have any doubts about the wording or the legality of certain provisions, it may be wise to consult a lawyer specializing in inheritance law, without having him draw up the will, which would make it invalid as a holographic will.

Keeping and revoking a holographic will

Once a holographic will has been drawn up, it is extremely important that it is kept in a safe place to ensure that it is found and executed when the time comes. In Switzerland, testators have several options for keeping this valuable document.

Keeping it at home is possible but involves risks. The will could be lost, accidentally destroyed or even concealed by people with malicious intent. If this option is chosen, it is advisable to inform someone you trust of the existence and location of the will.

Depositing it with a competent authority offers increased security. In most Swiss cantons, it is possible to deposit your will with the court registry or a notary. This guarantees the safekeeping of the document and facilitates its discovery when the estate is opened.

Some banks also offer safes for the safekeeping of important documents. This option ensures that the will is well protected physically, but it is necessary to inform relatives or the executor of the will of its existence and where it is kept.

Revocation and amendment of the will

The testator retains the right to revoke or amend his will at any time. The will may be revoked in several ways:

• By drawing up a new will expressly cancelling the previous provisions
• By voluntarily destroying the document
• By an act of revocation respecting the same forms as the holographic will

To partially modify a will, it is preferable to draw up a new complete document rather than make corrections on the original, which could raise questions about the authenticity of the modifications.

It is crucial to date and sign any new will or revocation to clearly establish the chronology of the testator’s wishes.

Current implications of the holographic will in Switzerland

The holographic will remains a privileged legal tool in Switzerland for organizing one’s estate. Its simplicity of drafting and its personal nature make it an attractive option for many citizens. Nevertheless, the evolution of family and patrimonial structures raises new challenges.

The increasing complexity of family situations, with the rise in the number of blended families and common-law marriages, sometimes makes it difficult to distribute assets fairly while respecting the legal reserved portion of an estate. Testators are increasingly faced with the need to reconcile their personal wishes with legal constraints.

The internationalization of estates is another factor to be taken into account. With assets located in different countries or heirs residing abroad, the drafting of a holographic will requires particular attention to the rules of private international law.

The increasing digitization of society also raises the question of the management of digital assets in the context of inheritance. Although a holographic will remains handwritten, it can now include provisions concerning online accounts, cryptocurrencies or digitally stored personal data.

The role of the lawyer in estate planning

In the face of these challenges, the services of a lawyer specializing in inheritance law can be invaluable, even in the context of a holographic will. Without directly drafting the document, the lawyer can:

• Advise on the optimal formulation of testamentary provisions
• Verify the conformity of the will with the rules of Swiss law
• Propose strategies to optimize the transmission of the patrimony
• Anticipate and prevent possible conflicts between heirs

The intervention of a legal professional thus makes it possible to combine the personal aspect of the holographic will with reinforced legal security, ensuring a better execution of the testator’s wishes in compliance with the Swiss legal framework.