The Will is a unilateral act that arises from the declaration of will of a single person, known as the testator or disposer. The testator is free to modify or revoke the will if it no longer reflects their intentions. Thus, the provisions made by will are referred to as "last wishes." A will can take different forms: holographic, public, or oral.
The Holographic Will (Article 505 CC)
A holographic will must meet several conditions:
The will can be written on any medium that supports writing. It does not need to be a separate document and can be contained within another document. It can be written on one or more materials as long as the unity of the document is evident.
It must be clear from the content that it is indeed a declaration of last wishes, but it does not need to be specifically labeled as a will.
The document must be entirely written by the hand of the testator, in a way that allows verification of authenticity. Additions by third parties will not be valid.
The testator must indicate the date, including the day, month, and year. This date establishes a chronological order between multiple wills and distinguishes between final acts and mere drafts. It also assesses the testator’s capacity to dispose. The law provides a nuance (see Article 520a CC): it is not necessary to specify the exact date as long as it is determinable (e.g., during Easter holidays).
The testator must sign the will. The signature typically includes the name and surname, but any other indication that leaves no doubt about the identity of the testator is acceptable. The signature must be at the end of the document, covering the entire document. An addition below the signature may be considered valid as long as it is established that it comes from the testator and truly reflects their will.
The Public Will (Articles 499 to 504 CC)
A public will is one received by a public official with the assistance of two witnesses. This type of will must take the form of an authentic act. There are two forms of public wills: the main form and the secondary form.
If the testator is able to read and sign the document themselves, it will be the main form. This will involves five phases:
Communication of the testator’s will to the public official: This can be done orally or in writing.
Drafting the document: During this phase, the public official transcribes the communicated wishes into a document.
Verification: The testator then verifies that the document correctly transcribes their last wishes. They read and sign it themselves. The signature must occur immediately after reading the document and must be done in the presence of the public official. If the text is modified afterward, it must be signed again.
Authentication: Immediately after the testator’s signature, the public official dates and signs the document. This phase gives the document its authentic character. The day, month, year, and place are mandatory.
Witness Attestation: The witnesses attest that the testator had the capacity to dispose, that they read the document, and that it reflects their last wishes. Witnesses do not need to know the content of the will.
The last three phases must occur consecutively, without interruption.
If the testator cannot read or sign the document themselves, it will be the secondary form. This will includes the same phases as the main form except for the verification phase by the testator: since the testator cannot read or sign, the public official reads the will. The two witnesses must attest that the will was read in their presence, that it reflects the testator’s wishes, and that the testator had the capacity to dispose. They will then know the content of the will.
To prevent the will from being destroyed or modified by a third party, it is advised to deposit it with a trusted person, generally a notary or the competent authority as provided by cantonal law (Article 505 paragraph 2 CC). Cantons are required to ensure that public officials retain copies or originals of the wills they have received or forward them to the competent authority. The will can be registered with the central will register in Bern.
The Oral Will (Articles 506 to 508 CC)
An oral will is an extraordinary form and can only be used if the testator is unable to make a will in either of the other two ways provided by law (e.g., in case of an epidemic or war). It is an emergency will consisting of the declaration of last wishes to two witnesses who then communicate them to the competent authority.
For this type of will to be valid, the testator must be in imminent danger of death and unable to make a will by writing (either because they cannot write or do not have the means to do so). The procedure consists of two phases:
Communication of the testator’s last wishes to two witnesses simultaneously. The testator must instruct them to prepare the document, at least tacitly.
Communication by the witnesses of the testator’s wishes to the competent authority.
Witnesses can communicate the testator’s wishes in two ways:
They can prepare a written document themselves, dated and signed by them, and deliver it in person, together and without delay, to the competent authority. This delivery must be accompanied by a statement from the witnesses attesting that the testator had the capacity to dispose. They must also justify the circumstances allowing for this type of will.
They can request the competent authority to draft a report of the testator’s wishes. The witnesses must then appear together before the authority, attest that the testator had the capacity to dispose, and explain the circumstances leading to this type of will.
If the testator does not die immediately, the oral will loses its validity after 14 days from when the testator regains the ability to make a will in one of the other forms.
Failure to observe the above conditions results in the nullity of the will. We can answer your questions about the form and conditions of validity of a will. If you choose the authentic form, we will guide you to a professional accredited by the canton.
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