Pact of inheritance and bequest under Swiss law

Swiss inheritance law offers various tools for organizing one’s estate, including the pact of inheritance and the bequest. These two legal instruments make it possible to plan the transmission of one’s assets, but have distinct characteristics and effects. The pact of inheritance, a bilateral contract concluded between the grantor and his heirs, is distinct from the bequest, a unilateral disposition due to death. This in-depth analysis explores the specific features, advantages and limitations of each, as well as their relationship in the context of estate planning in Switzerland.

Definition and legal nature of the agreement as to succession

The agreement as to succession is a contract by which one person undertakes to another to leave them their estate or a legacy. It is a bilateral act that binds the parties during their lifetime and takes effect upon the death of the person making the disposition. In Swiss law, the agreement as to succession is governed by articles 494 et seq. of the Civil Code.

Unlike a will, which is a unilateral act that can be revoked at any time, the agreement as to succession is irrevocable. This makes it a powerful tool for estate planning, offering increased legal security to the parties involved.

The agreement as to succession can take various forms:

• Attributive agreement: the grantor undertakes to leave all or part of their estate to an heir
• Renunciatory agreement: an heir renounces all or part of their inheritance rights
• Family agreement: several members of a family settle their inheritance together

The validity of the inheritance agreement is subject to strict formal conditions. It must be concluded in an official form, before a notary, in the presence of two witnesses. This formality is intended to ensure that the parties have given due consideration to the matter and to prevent abuse.

Characteristics and effects of bequests under Swiss law

A bequest, on the other hand, is a disposition of property upon death whereby the testator allocates one or more specific items of property from his or her estate to a specific person. Unlike an agreement as to succession, a bequest is a unilateral act that can be revoked or modified at any time by the testator.

In Swiss law, bequests are governed by articles 484 et seq. of the Civil Code. They may relate to

• A specific item of property (movable, immovable, sum of money)
• A real right (usufruct, easement)
• A claim

The legatee is not an heir in the strict sense. He has a claim against the estate to obtain the bequeathed property, but is not liable for the debts of the deceased. This distinction is fundamental to understanding the scope and limits of the bequest in relation to the agreement as to succession.

The legacy takes effect on the death of the testator, but the legatee must request delivery from the heirs. In the event of refusal, he has the right to take action for delivery of the legacy.

Advantages and limitations of the legacy

The legacy has several advantages:

• Flexibility: the testator can modify it at any time
• Simplicity: it can be included in a holographic will
• Precision: it allows specific assets to be allocated

However, bequests also have their limitations:

• Legal uncertainty: risk of revocation by the testator
• Limited scope: does not allow the entire estate to be settled
• Risk of challenge: by the heirs entitled to a reserved share if the bequest affects their reserved share

Comparison between a pactum successionis and a bequest

The succession agreement and the legacy differ in several fundamental aspects:

• Legal nature: the succession agreement is a bilateral contract, while the legacy is a unilateral provision
• Revocability: the succession agreement is irrevocable unless agreed by the parties, while the legacy is freely revocable
• Form: the succession agreement requires an authentic form, the legacy can be included in a holographic will
• Scope of application: the agreement as to succession can regulate the entire estate, the legacy relates to specific assets
• Effects: the agreement as to succession binds the parties during their lifetime, the legacy only takes effect upon death

These differences have significant practical implications for estate planning. The choice between these two instruments will depend on the objectives of the person making the disposition, the composition of their assets and their family relationships.

Relationship between an agreement as to succession and bequests in estate planning

In practice, an agreement as to succession and bequests can be combined to optimize estate planning. For example:

• An agreement as to succession can provide for the allocation of the disposable share to one heir, while including specific bequests to other persons
• An agreement as to abdication can be concluded with certain heirs, making it possible to bequeath the assets concerned to other beneficiaries
• A family agreement can distribute the bulk of the estate, while leaving the possibility of bequeathing particular items of property.

This combination allows you to benefit from the advantages of each instrument:

• The legal security of the inheritance agreement for the main provisions
• The flexibility of the bequest for specific allocations

It is nevertheless essential to ensure the consistency of all the provisions and respect for the reserved portion of the estate.

Limits and precautions

The relationship between the agreement as to succession and bequests requires special attention:

• Risk of contradiction between the provisions
• Increased complexity of the succession
• Need for precise and unambiguous wording

Legal support is often necessary to guarantee the effectiveness and validity of these combined provisions.

Current and practical implications in Swiss law

Estate planning in Switzerland is constantly evolving, influenced by societal and economic changes. The combined use of the inheritance agreement and the legacy is part of this trend, responding to the need for flexibility and legal certainty.

Several factors contribute to the growing interest in these tools:

• Increasing complexity of family structures (blended families, common-law marriages)
• Internationalization of wealth
• Increased longevity and issues related to dependency
• Transfer of family businesses

In this context, mastering the legal subtleties of the inheritance pact and bequest becomes essential. Legal practitioners, especially specialized lawyers, play a key role in developing tailor-made inheritance strategies.

Legal support makes it possible to

• Evaluate the relevance of each tool according to personal and patrimonial situation
• Drafting precise clauses that comply with Swiss law
• Anticipating potential conflicts and providing for resolution mechanisms
• Optimizing inheritance taxation in accordance with the law

Recent case law from the Federal Court regularly provides clarification on the interpretation and application of these inheritance provisions. Constant legal monitoring is necessary to guarantee the effectiveness of the strategies put in place.

Ultimately, the link between inheritance pacts and bequests offers extensive possibilities for inheritance planning under Swiss law. This tailor-made approach meets the needs of a changing society, where the transfer of wealth involves complex personal, family and economic issues. Mastery of these legal tools, combined with a detailed analysis of individual situations, makes it possible to develop inheritance solutions that are both secure and adaptable.