Contesting a will is a delicate judicial procedure aimed at establishing the total or partial nullity of a last will and testament on grounds of formal defect, testamentary incapacity, defect of consent or undue influence. In Swiss law, this action is governed by arts. 519 to 521 SCC. PBM Avocats in Geneva and Lausanne regularly represents heirs or legatees in these complex proceedings, which require both legal expertise and the ability to manage often highly tense family situations.
The Action for Nullity of a Will (arts. 519-521 SCC)
Art. 519 SCC provides that testamentary dispositions may be annulled on the following grounds:
- The testator did not have testamentary capacity at the time of the act (partial or total civil incapacity, mental illness, dementia);
- The testator did not enjoy freedom to make a will (undue influence, threat, duress);
- The dispositions are unlawful or immoral (art. 20 CO);
- The will is formally defective (absent handwriting for holographic will, missing witness for public will, etc.).
The action for nullity is available to any person with a succession interest in the decision (aggrieved legal heir, legatee whose legacy is cancelled by a later will, etc.).
Formal Defects as Grounds for Nullity
Formal requirements are strict conditions of validity. A will that does not comply with them is null, even if its content perfectly reflects the testator's genuine wishes. The most common formal defects are:
| Type of Will | Common Formal Defect | Consequence |
|---|---|---|
| Holographic will | Not entirely handwritten (typed, printed) | Total nullity |
| Holographic will | Missing or incomplete date | Nullity if the date is decisive for capacity or order of wills |
| Holographic will | Absent handwritten signature | Total nullity |
| Public will | Witness with a succession interest | Nullity of the disposition in favour of the witness |
| Public will | Absence of one of the two required witnesses | Total nullity |
Testamentary Incapacity as a Ground for Nullity
Lack of testamentary capacity at the time of drafting the will is the most frequent ground for challenge in successions involving elderly persons. For the will to be null, the claimant must prove that the testator lacked testamentary capacity at the precise moment the will was drafted. This proof is often difficult to provide, particularly when the testator suffered from a progressive illness (Alzheimer's) with moments of lucidity.
Typical means of evidence include:
- The testator's medical records (hospitalisations, psychiatric diagnoses);
- Retrospective psychiatric expert assessment commissioned by the court;
- Testimony from relatives, carers, neighbours;
- Correspondence and the testator's behaviour around the date of the will.
Undue Influence and Defects of Consent
Undue influence consists of fraudulently or through pressure obtaining a testator's consent to make a will that unduly favours the manipulator. It may manifest through:
- Isolating the testator from family and close ones;
- False statements about the intentions or behaviours of other heirs;
- An overwhelming presence during drafting, preventing the testator from freely expressing their will;
- Creating an emotional, economic or physical dependence of the testator on the manipulator.
Proving undue influence is difficult but not impossible. PBM Avocats has developed expertise in these proceedings which often involve producing correspondence, telephone records, witness statements and medical expert assessments. Coordination with the aspects of forced heirship and the reduction action often allows a comprehensive solution to be found.
Frequently Asked Questions about Contesting a Will in Switzerland
What is the deadline for contesting a will in Switzerland?
The deadline to bring an action for nullity of a will for formal defect or testamentary incapacity is one year from the day the claimant became aware of the will and the ground for nullity (art. 521 para. 1 SCC). In the event of fraud, threat or error, the deadline is also one year from discovery of the ground (art. 521 para. 2 SCC). An absolute deadline of 10 years from the opening of the succession applies in all cases. These are prescription deadlines; it is therefore essential to act quickly.
What are the most common grounds for nullity of a will?
The most common grounds for contesting a will in practice are: (1) the testator's lack of testamentary capacity at the time of drafting (dementia, confused state); (2) formal defects, particularly for a holographic will (not handwritten, incomplete date, absent signature); (3) fraud or undue influence (manipulation of the testator by a person who benefits from it); (4) threat or duress that vitiated the testator's will. The Federal Supreme Court strictly examines each case.
What is undue influence in inheritance and how can it be proven?
Undue influence (captation d'héritage) is the manipulation of a physically or psychologically weakened person to lead them to draft a will in favour of the manipulator. Legally, it may constitute fraud within the meaning of art. 28 CO (by analogy with art. 519 SCC) or be invoked as a defect in consent. Proof is tricky as it often rests on witness statements, recordings, medical documents or psychiatric expert assessments. It is important to document the evidence as early as possible after discovering the disputed will.
Is nullity of a will for formal defect automatic or must it be invoked?
Nullity of a will for formal defect must in principle be invoked by an aggrieved heir within the one-year deadline (art. 521 para. 1 SCC). It is not automatic and the court does not pronounce it ex officio. If nobody contests the defective will within the statutory deadline, it may apply as it stands despite the formal defect. Only an express legal action enables the declaration of nullity to be obtained. Cancellation of the will benefits all legal heirs, who recover their intestate rights.
Can a will be contested if the testator is thought to have been unduly influenced?
Yes. Undue influence is recognised in Swiss law as a ground for nullity of a will when it has vitiated the testator's will. It differs from overt fraud in that it may result from less direct but equally effective pressure (isolation of the testator, emotional or physical dependence on a person). The judge assesses whether the testator was still capable of expressing their own will or had been reduced to an instrument of another's will. Evidence often passes through medical expert assessments and witness statements.