The public will is one of the official forms of testamentary disposition recognized by Swiss law. This solemn document, drawn up by a public official in the presence of witnesses, enables the testator to express his or her last wishes in an authentic and secure manner. Framed by strict rules designed to guarantee its authenticity and validity, the public will offers greater legal security than other forms of will. It must be drawn up in compliance with precise formalities and by legal professionals, to ensure that the estate is passed on in accordance with the wishes of the deceased and legal requirements.
The public will, also known as an authentic will, is a form of testamentary disposition provided for in the Swiss Civil Code. It is a solemn document drawn up by a public official, generally a notary, in the presence of the testator and two witnesses. This form of will is distinguished by its official character and enhanced probative value.
The main characteristics of a public will under Swiss law are as follows:
The public will offers several advantages over other forms of will:
However, this form of will involves higher costs and a more complex procedure than the holographic will. It is particularly recommended for complex estates or when the testator wishes to benefit from in-depth legal advice.
Drawing up a public will in Switzerland follows a rigorous procedure, governed by law. The main steps are as follows:
The testator should contact a notary of his choice to arrange a meeting. It is advisable to prepare your wishes and intentions concerning the distribution of your estate in advance.
During this meeting, the notary informs the testator about the legal aspects of the succession and takes note of his wishes. He or she advises the testator on the wording of the testamentary dispositions and ensures that they comply with Swiss law.
The notary draws up the will, respecting the wishes expressed by the testator and ensuring that the provisions are clear and precise.
A formal meeting is organized in the presence of the testator, the notary and two witnesses. The procedure is strictly regulated:
The notary keeps the original will in his archives and issues a copy to the testator. He also registers the will with the central register of wills.
This rigorous procedure is designed to guarantee the authenticity of the will and prevent the risk of subsequent contestation. It enables the testator to benefit from personalized legal support throughout the process of drawing up his last will and testament.
To be valid under Swiss law, a public will must comply with a set of strict legal conditions and formalities. These requirements are designed to guarantee the authenticity of the deed and protect the interests of the testator and potential heirs.
The basic conditions for the validity of a public will are as follows:
The legal formalities for drawing up a public will are as follows:
It should be noted that some Swiss cantons may have additional formalities or specific rules for drawing up public wills. It is therefore advisable to contact a local notary to find out about any particularities that may apply in the canton concerned.
Failure to comply with these conditions and formalities may result in the nullity of the public will. It is therefore essential to ensure that all legal requirements are scrupulously respected when drawing up the deed.
The content of a public will under Swiss law can be varied and adapted to the specific wishes of the testator. However, certain provisions are commonly included in this type of deed. Here is an overview of what a public will can contain:
The will must include information that clearly identifies the testator:
The testator may freely designate his heirs and legatees, subject to respect for the reserved portions. These may be :
For each beneficiary, please specify :
The testator may provide for the attribution of specific assets to specific persons. These provisions may concern :
The testator may appoint an executor to ensure that his last wishes are carried out. Please note :
A public will may also contain various special provisions, such as :
It is advisable to include a clause expressly revoking all previous wills, to avoid any ambiguity about the testator’s last wishes.
The contents of a public will must be drafted clearly and precisely to avoid any misinterpretation. The notary plays a crucial role in ensuring that the testator’s wishes are properly formulated in legal terms.
Public wills occupy a significant place in current Swiss inheritance practice. Its use raises a number of considerations and issues worth examining.
At a time when contested wills are becoming increasingly common, the public will offers greater legal certainty. The involvement of a legal professional and compliance with strict formalities considerably reduce the risk of the validity of the deed being called into question.
Changing family structures (blended families, common-law unions, etc.) often require careful estate planning. The public will makes it possible to adapt testamentary provisions to these complex situations, with the help of expert legal advice.
Inheritance tax varies considerably between Swiss cantons. A public will, drawn up with the assistance of a notary, optimizes the transfer of assets while taking into account local tax regulations.
Public wills can include provisions to protect vulnerable heirs (minors, persons under curatorship, etc.). The presence of a notary ensures that these protective measures are correctly formulated and legally valid.
Although the public will involves third parties (notary and witnesses), it offers a certain degree of confidentiality. The contents of the will are not revealed until the testator’s death, and the professionals involved are bound by professional secrecy.
The higher cost of a public will compared with a holograph will can be a barrier for some people. However, this cost must be weighed against the legal certainty offered and the risks of subsequent challenge.
The issue of digitizing public wills and storing them electronically is becoming increasingly important. Some cantons are already experimenting with secure digital storage solutions, while maintaining the guarantees of authenticity inherent in notarial deeds.
In this context, law firms specializing in inheritance law play a complementary role to that of notaries. They can intervene upstream to advise the testator on his overall estate strategy, or downstream to assist the heirs in interpreting and executing the public will.
The public will remains the preferred legal tool for securing the transfer of assets in Switzerland. Its judicious use, in collaboration with legal professionals, makes it possible to meet today’s estate planning challenges while offering great flexibility in the expression of last wishes.
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