Public will

The public will is one of the official forms of testamentary disposition recognized by Swiss law. This solemn act, drawn up by a public official in the presence of witnesses, allows the testator to express his or her last wishes in an authentic and secure manner. Governed by strict rules aimed at guaranteeing its authenticity and validity, the public will offers greater legal security than other forms of will. Its preparation involves compliance with specific formalities and the intervention of legal professionals, thus ensuring that the estate is passed on in accordance with the wishes of the deceased and legal requirements.

Definition and characteristics of the public will in Switzerland

The public will, also known as the authentic will, is a form of testamentary disposition provided for by the Swiss Civil Code. It is a solemn act 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 nature and its enhanced probative force.

The main characteristics of the public will under Swiss law are as follows:

• Drafted by an authorized public official
• Obligatory presence of two witnesses
• Reading of the will to the testator in the presence of the witnesses
• Signature of the will by the testator, the public official and the witnesses
• Retention of the original by the public official

The public will offers several advantages over other forms of will:

• Increased legal certainty thanks to the intervention of a legal professional
• Reduction of the risk of subsequent disputes
• Personalized advice on the legal and fiscal aspects of the inheritance
• Secure storage of the original document

However, this form of will involves higher costs and a more complex procedure than a holographic will. It is particularly recommended for complex inheritances or when the testator wishes to benefit from in-depth legal support.

Procedure for drawing up a public will

The drafting of a public will in Switzerland follows a rigorous procedure, governed by law. The main stages are as follows:

1. Making an appointment with a notary

The testator must contact a notary of their choice to arrange an appointment. It is recommended that they prepare their wishes and intentions regarding the distribution of their estate in advance.

2. Preliminary interview with the notary

During this meeting, the notary informs the testator about the legal aspects of the inheritance and gathers his or her wishes. He or she advises the testator on the formulation of the testamentary dispositions and ensures that they comply with Swiss law.

3. Drafting of the will

The notary drafts the will respecting the wishes expressed by the testator and ensuring that the dispositions are clear and precise.

4. Signing session

An official session is organized in the presence of the testator, the notary and two witnesses. The proceedings of this session are strictly supervised:

• The notary reads the will in full to the testator in the presence of the witnesses.
• The testator declares that the will corresponds to his last wishes.
• The testator signs the will.
• The witnesses attest that the testator has declared that the document contains his last will and that he appeared capable of disposing of his property
• The notary and the witnesses also sign the will

5. Conservation and registration

The notary keeps the original will in his archives and issues a copy to the testator. He also registers the will in the central register of wills.

This rigorous procedure aims to guarantee the authenticity of the will and to prevent the risk of subsequent challenges. It allows the testator to benefit from personalized legal support throughout the process of drawing up his or her last will and testament.

Conditions of validity and legal formalities

To be valid under Swiss law, a public will must comply with a set of strict legal conditions and formalities. These requirements are intended to guarantee the authenticity of the document and to protect the interests of the testator and potential heirs.

Substantive conditions

The substantive conditions for the validity of a public will are as follows:

• Capacity to make a will: The testator must be of legal age (18 years old) and have capacity at the time the will is drawn up.
• Freedom to make a will: The testator must act of his own free will, without duress or undue influence.
• Respect for reserved portions of the estate: The testamentary dispositions must not infringe the portions of the estate to which the legal heirs are entitled, apart from exceptions provided for by law.

Legal formalities

The legal formalities to be observed for the drawing up of a public will are as follows:

• Intervention of a public official: The will must be received by a notary or another public official authorized according to cantonal law.
• Presence of two witnesses: Two witnesses must be present when the will is received. They must be of legal age, capable of discernment and not be affected by the testamentary provisions.
• Reading of the will: The public official must read the will in full to the testator in the presence of the witnesses.
• Declaration of the testator: The testator must declare that the document contains his last will and testament.
• Signatures: The will must be signed by the testator, the public official and the two witnesses.
• Mention of the completion of formalities: The public official must mention in the document that all formalities have been completed.

Cantonal particularities

It should be noted that some Swiss cantons may have additional formalities or specific rules for the drawing up of public wills. It is therefore advisable to check with 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 observed when the will is drawn up.

Content and provisions of the public will

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 will. Here is an overview of the elements that a public will may contain:

Identification of the testator

The will must include information that clearly identifies the testator:

• Full name and first names
• Date and place of birth
• Home address
• Marital status

Designation of heirs and legatees

The testator is free to designate his heirs and legatees, subject to the respect of the reserved portions. These may include:

• Natural persons (family members, friends, etc.)
• Legal persons (associations, foundations, etc.)

For each beneficiary, the following should be specified:

• Full identity
• The share or assets allocated to them
• Any conditions or charges associated with the transfer

Allocation of specific assets

The testator may provide for the allocation of specific assets to specific persons. These provisions may concern:

• Real estate
• Valuables (jewelry, works of art, etc.)
• Bank accounts or financial securities

Appointment of an executor

The testator may appoint an executor to ensure that his last wishes are carried out. The following should be specified:

• The identity of the executor
• His powers and duties
• His remuneration, if any

Special provisions

The public will may also contain various specific provisions, such as:

• Instructions for the funeral
• The creation of a foundation
• Clauses of escheat
• Conditions precedent or subsequent

Revocation of previous wills

It is recommended to include a clause expressly revoking all previous wills, in order to avoid any ambiguity regarding the testator’s last wishes.

The content of the public will must be drafted clearly and precisely to avoid any misinterpretation. The notary plays a crucial role in the proper legal formulation of the provisions desired by the testator.

Current implications of the public will in Switzerland

The public will occupies a significant place in current Swiss inheritance practice. Its use raises several considerations and issues that deserve to be examined.

Strengthened legal certainty

In a context where challenges to wills are increasingly frequent, the public will offers increased legal security. The involvement of a legal professional and the respect of strict formalities considerably reduce the risks of the validity of the act being questioned.

Adaptation to complex family situations

Changes in family structures (blended families, common-law marriages, etc.) often make careful estate planning necessary. A public will allows the precise adaptation of testamentary dispositions to these complex situations, with the help of sound legal advice.

Tax issues

Inheritance taxation varies considerably between Swiss cantons. A public will, drawn up with the assistance of a notary, allows for the optimal transfer of assets, taking into account local tax specificities.

Protection of vulnerable persons

A public will can include provisions to protect vulnerable heirs (minors, persons under guardianship, etc.). The presence of a notary guarantees that these protective measures are correctly formulated and legally valid.

Confidentiality and discretion

Although a public will involves the intervention of third parties (notary and witnesses), it offers a certain degree of confidentiality. The contents of the will are only revealed on the death of the testator, and the professionals involved are bound by professional secrecy.

Cost and accessibility

The higher cost of a public will compared to a holographic will may be a deterrent for some people. However, this cost must be weighed against the legal certainty offered and the risks of subsequent challenges.

Digitization and modernization

The question of digitizing public wills and storing them electronically is increasingly being raised. Some cantons are already experimenting with secure digital storage solutions, while maintaining the guarantees of authenticity specific to notarial deeds.

Role of law firms

In this context, law firms specializing in inheritance law play a role that complements that of notaries. They can be involved at an early stage to advise the testator on his or her overall inheritance strategy, or at a later stage to assist the heirs in the interpretation and execution of the public will.

The public will remains a privileged legal tool for securing the transmission of wealth in Switzerland. Its judicious use, in collaboration with legal professionals, makes it possible to meet the current challenges of estate planning while offering great flexibility in the expression of one’s last wishes.