Following the testator’s death, disputes may arise as to whether or not a legacy is to be paid out. In such cases, the legatee is faced with the question of how to enforce their claim to the legacy. For the heirs, on the other hand, the question arises as to whether, and to what extent, they can raise objections to the claimed legacy
Definition
A legacy is a distinct form of disposition upon death. It exists where the testator bestows a financial benefit on a specific person without appointing them as an heir (Art. 484.1 of the Swiss Civil Code). The benefit conferred may take the form of any asset, such as a specific item or, as is often the case, a sum of money (Art. 484.2 of the Swiss Civil Code). Distinguishing between a legacy and the appointment of an heir is not always straightforward in individual cases, but it has significant legal consequences. In cases of doubt, it is therefore advisable to seek the opinion of a specialist.
Enforcement of a Legacy
It must also be possible to enforce a legacy. Particularly in the case of legacies of money or property, it is often the case that heirs do not fulfil their obligations voluntarily.
Legatees have only limited rights to information. As a rule, they receive only a notification regarding the legacy to which they are entitled – but not the entire will. They are not, in principle, entitled to any further information. If payment or handover is not made voluntarily, the legatee must take action themselves. A distinction must be made here between claims for money and claims for specific items: in the case of a claim for specific items, enforcement is usually achieved through a legacy action. In the case of a monetary bequest, debt recovery proceedings may also be initiated.
Ways in Which Heirs May Challenge a Bequest
Heirs may challenge a claim to a bequest in various ways. Firstly, they may seek to have the will declared invalid by bringing an action for annulment, for example on the grounds of lack of mental capacity, deception or duress, formal defects or impermissible content. In particularly serious cases, the will may even be void, meaning that it has no legal effect from the outset.
Secondly, heirs entitled to a compulsory share may bring an action for reduction to demand that a legacy be reduced if their compulsory share is infringed. In this case, the claim is reduced accordingly.
It is important to note that an action for annulment or reduction must be brought before the court within one year of becoming aware of the will and the grounds for its invalidity; otherwise, these rights are forfeited. To this end, an application for conciliation must be submitted to the competent authority. In any event, the right to bring an action for annulment or reduction lapses ten years after the date on which the will was opened.
Furthermore, the heirs may raise the objection that the legatee cannot derive any claim from the testator’s will on the grounds of unworthiness to inherit – for example, if the legatee influenced the testator through deception or threats to draw up or amend the will (see Art. 540.1 of the Swiss Civil Code).
Finally, a bequest is generally void if the bequeathed item no longer exists at the time of the testator’s death, for example because it has already been sold. In such a case, the bequest is generally deemed to have been revoked, and the heirs are not obliged to provide a replacement (Art. 484.3 of the Swiss Civil Code).
Conclusion
Enforcing a bequest is often more challenging than it first appears. Beneficiaries must actively pursue their claims, whilst heirs have various options for contesting them. To avoid disputes, it is crucial to set out clear and carefully considered provisions in the will.
Should you have any questions regarding inheritance law or require assistance in drafting a will, the attorneya-at-law and notaries at Pilatushof AG will be happy to assist you.
